United States Court of Appeals 

For the First Circuit 

No. 14-1844 

UNITED STATES OF AMERICA, 

Appellant, 

v. 

WAYNE CARTER, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, U.S. District Judge] 

Before 

Torruella, Thompson, and Kayatta, 

Circuit Judges. 

Renée M. Bunker, Assistant United States Attorney, with whom 

Thomas E. Delahanty II, United States Attorney, was on brief, for 

appellant. 

J. Hilary Billings, Assistant Federal Defender, for appellee. 

June 22, 2017 
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KAYATTA, Circuit Judge. This appeal challenges us to 

figure out how best to put a case back on track following a 

conviction, a vacation of that conviction on appeal, a dismissal 

of the indictment on remand, a government appeal of that dismissal, 

and the subsequent issuance of controlling authority making it 

clear that the original conviction was proper. For the following 

reasons, we again remand the case, this time for reentry of the 

judgment of conviction and the sentence, albeit with leave for the 

defendant to proceed with a previously preserved challenge to his 

sentence. 

I. 

On April 1, 1997, Carter pled guilty in state court to 

violating Maine's assault statute, Me. Stat. tit. 17-A, 

§ 207(1)(A). The victim was Carter's girlfriend and the mother of 

one of his children.1 Thirteen years later, Carter was indicted 

for violating 18 U.S.C. § 922(g)(9) by possessing a firearm that 

 1 "[T]he domestic relationship, although it must be 

established beyond a reasonable doubt in a § 922(g)(9) firearms 

possession prosecution, need not be a defining element of the 

predicate offense." United States v. Hayes, 555 U.S. 415, 418 

(2009). Carter's relationship to the victim of the 1997 assault 

is described in the prosecution's version of the facts, which was 

filed the day before Carter's conditional plea. No transcript of 

the change-of-plea colloquy exists, so we cannot verify that Carter 

admitted this particular fact during his guilty plea. 

Nevertheless, Carter has not challenged that this element of the 

offense was satisfied, and he admitted in his sentencing memoranda 

that the assault victim was his "live-in girl friend [sic]" and 

"domestic partner." 
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he had inherited, kept, pawned, and redeemed after the 1997 assault 

conviction. Under § 922(g)(9), it is unlawful for a person "who 

has been convicted in any court of a misdemeanor crime of domestic 

violence" to possess a firearm. A "misdemeanor crime of domestic 

violence" includes any state-law misdemeanor that "has, as an 

element, the use or attempted use of physical force . . . 

committed . . . by a person with whom the victim shares a child in 

common . . . or by a person similarly situated to a spouse . . . 

of the victim." 18 U.S.C. § 921(a)(33)(A)(i)–(ii). 

Carter moved to dismiss the indictment on the ground 

that the Maine assault statute could be violated with a mens rea 

of recklessness and that a reckless assault does not have as an 

element the "use" of physical force. Later, he filed a 

supplemental motion to dismiss arguing that § 922(g)(9) 

unconstitutionally infringes on his Second Amendment rights. The 

district court denied these motions in July 2011 and March 2012, 

respectively. Based on this court's then-recent opinion in United 

States v. Booker, 644 F.3d 12, 21 (1st Cir. 2011), the district 

court rejected the argument that a misdemeanor crime of domestic 

violence does not include any crime for which recklessness is a 

sufficient mens rea. Carter ultimately pled guilty but reserved 

his right to appeal the denial of his motions to dismiss and his 

sentence. 
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While Carter's appeal was pending, the Supreme Court 

decided United States v. Castleman, 134 S. Ct. 1405 (2014), which 

held that "physical force" in 18 U.S.C. § 921(a)(33)(A) means only 

the amount of force required for common law battery and not the 

"violent force" required for a violent felony by Johnson v. United 

States, 559 U.S. 133, 140 (2010). Castleman, 134 S. Ct. at 1413. 

The mens rea required for a "use" of physical force was not at 

issue in Castleman, but the opinion volunteered that "the merely 

reckless causation of bodily injury . . . may not be a 'use' of 

force." Id. at 1414. Supporting that possibility, the Court added 

a footnote stating that "[a]lthough [Leocal v. Ashcroft, 543 U.S. 

1 (2004),] reserved the question whether a reckless application of 

force could constitute a 'use' of force, the Courts of Appeals 

have almost uniformly held that recklessness is not sufficient." 

Castleman, 134 S. Ct. at 1414 n.8 (citation omitted). That 

footnote contained a "[b]ut see" citation to Booker. Id. Piling 

tangible action on top of dictum, the Court subsequently granted, 

vacated, and remanded both United States v. Armstrong, 706 F.3d 1 

(1st Cir. 2013), which had followed Booker on this point, see id. 

at 4–5, and United States v. Voisine, 495 F. App'x 101 (1st Cir. 

2013), which had followed Armstrong, see id. at 101–02. The 

Supreme Court instructed this court to reconsider both cases in 

light of Castleman. See Armstrong v. United States, 134 S. Ct. 

1759 (2014) (Mem.). 
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The panel that heard Carter's appeal paid attention to 

these signals. It observed that although Booker and Armstrong 

would normally require it to hold that reckless assault is a 

misdemeanor crime of domestic violence, there was "sound reason 

for thinking that the Booker panel might well change its collective 

mind in light of Castleman." United States v. Carter, 752 F.3d 8, 

18–19 n.11 (1st Cir. 2014) (citations omitted). Noting the 

uncertainty generated by Castleman and the remand of Armstrong, 

the panel opted to see if further development of the record might 

moot the question. Id. at 21. Specifically, the panel observed 

that the parties did not dispute that the Maine assault statute 

was divisible into different forms of the offense with different 

mens rea elements. Id. at 17. In such circumstances, gathering 

and assessing "the underlying [Shepard2] documents may ultimately 

[have] show[n] that Carter's conviction was under one of the other 

two mens-rea prongs of the statute--'intentionally' or 

'knowingly.'" Id. at 18–19 n.11. The panel therefore "vacate[d] 

[Carter's] conviction and the district court's denial of his 

 2 Shepard v. United States, 544 U.S. 13 (2005), allows a court 

determining which form of a divisible offense a prior conviction 

fell under to "'consult[] the trial record--including charging 

documents, plea agreements, transcripts of plea colloquies, 

findings of fact and conclusions of law from a bench trial, and 

jury instructions and verdict forms'--in order to 'determine which 

statutory phrase was the basis for the conviction.'" Carter, 752 

F.3d at 19 (alteration in original) (quoting Johnson, 559 U.S. at 

144). 
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original motion to dismiss the indictment on statutory grounds" 

and "remand[ed] the case to the district court for further 

proceedings consistent with th[e] opinion and in light of the 

Supreme Court's opinion in Castleman and its vacation of [this 

court's] judgment in Armstrong." Id. at 21 (citations omitted). 

In so doing, the panel plainly left open the ultimate resolution 

of Carter's challenge to his conviction. See id. at 18–19 n.11 

("[W]e need not decide today whether, in light of Castleman, a 

conviction under the 'recklessly' prong of the Maine statute 

satisfies the 'use or attempted use of physical force' requirement 

for purposes of § 922(g)(9) . . . ."); see also United States v. 

Voisine, 778 F.3d 176, 186 (1st Cir. 2015) ("In United States v. 

Carter, . . . [t]he opinion noted that Castleman 'casts doubt' 

upon Booker, but it explicitly did 'not decide' the question before 

this court." (citations omitted)). 

On remand, it turned out that no Shepard documents 

demonstrated that the state-court conviction was for the 

intentional or knowing version of the assault offense. Thus, the 

question whether an offense resting on reckless conduct 

constituted a misdemeanor crime of domestic violence remained 

front and center. Also viewing Castleman as a harbinger, the 

district court reversed course and concluded that the reckless 

form of the Maine assault statute did not qualify as a misdemeanor 

crime of domestic violence. The district court understood the 
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Supreme Court to have vacated Armstrong in order to pull this 

circuit into line with the other circuits with respect to whether 

one can "use . . . physical force" recklessly within the meaning 

of § 921(a)(33)(A)(ii). It also understood the observation in 

Carter that the Booker panel might "change its collective mind in 

light of Castleman" to mean that Booker was no longer binding. 

After finding that the Shepard documents did not establish the 

form of assault of which Carter was convicted, the district court 

dismissed the indictment. The government filed this appeal. 

The appeal was stayed pending this court's decisions in 

Armstrong and Voisine, which were consolidated for 

reconsideration. As it turned out, Castleman's augury proved 

false. This court concluded that, notwithstanding Castleman, the 

reckless form of the Maine assault statute is a misdemeanor crime 

of domestic violence within the meaning of § 921(a)(33)(A)(ii). 

See Voisine, 778 F.3d at 177. The Supreme Court affirmed. See 

Voisine v. United States, 136 S. Ct. 2272, 2276 (2016). In so 

doing, it plainly and finally resolved the uncertain issue of law 

that has sent this case around the barn and back. As the district 

court first held in 2012, Carter's conviction for assault was a 

conviction for a misdemeanor crime of domestic violence. We must, 

therefore, reverse the decision below and order the indictment 

reinstated in light of Voisine. 
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That leaves two related loose ends: Carter's appeal 

from the calculation of his sentence, and the related question of 

how best to craft our mandate to facilitate the completion of this 

case.3 

II. 

Carter's challenge to his sentence trains on a single 

issue: whether the district court erred in finding that Carter's 

unlawful possession of firearms did not qualify for a substantially 

lower guidelines sentencing range based on what we have called the 

"'sporting purposes or collection' exception." See Carter, 752 

F.3d at 12; U.S. Sentencing Guidelines Manual § 2K2.1(b)(2). 

Carter properly preserved his objections to the district court's 

finding both in the district court and on his original appeal. 

The panel hearing that appeal nevertheless did not reach the 

sentencing challenge because it remanded for reconsideration of 

the conviction. See Carter, 752 F.3d at 21. When the district 

court on remand dismissed the indictment, any questions concerning 

the sentence dropped out, only now to be revived by our conclusion 

that the conviction was proper. 

 3 Carter also argues that § 922(g)(9) violates the Second 

Amendment as applied to him. He recognizes, however, that this 

court rejected this exact constitutional challenge in Carter. 752 

F.3d at 12–13. The law of the case and the law of the circuit 

thus both foreclose this argument. 
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The fact that Carter has completed his prison sentence 

does not moot his sentencing challenge. See United States v. 

Molak, 276 F.3d 45, 48 (1st Cir. 2002). In simple terms, if the 

sentencing guidelines treated his criminal conduct as warranting 

much less prison time than the district court thought was the case, 

the district court might well adjust the length of supervised 

release deemed appropriate.4 

The government complains that Carter has yet to serve 

his supervised release only because, while out on bail for this 

case, he committed a state crime that extended his incarceration. 

That may be so, but the fact remains that he still has a real stake 

in challenging his sentence, so the challenge is not moot. Cf. 

United States v. DeLeon, 444 F.3d 41, 55 (1st Cir. 2006) (finding 

sentencing challenge moot despite pending supervised release term 

only because defendant was "in immigration custody and facing 

imminent deportation from the United States"). 

Ideally, we would decide the sentencing issue now 

ourselves. The parties agree, though, that (in the words of 

 4 The district court's decision not to apply the sporting 

purposes or collection exception made a significant difference to 

Carter's guidelines sentencing range. Without the exception, 

Carter's guidelines sentencing range was eighteen to twenty-four 

months. If the district court had applied the exception, Carter's 

guidelines sentencing range may have been as low as zero to six 

months. Carter's year-and-a-day sentence of imprisonment, which 

was a downward variance from the guidelines sentencing range the 

district court used, would have been an upward variance from the 

guidelines sentencing range if the exception applied. 
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Carter's brief) "the 'Sporting Purposes or Collection' exception 

issue is not appropriately presented for consideration in the 

context of this appeal." The government has not briefed the 

merits. And this docket does not contain the full record germane 

to the issue. So prudence requires a remand to get it teed up. 

III. 

That leaves the question of what we should order the 

district court to do on remand. The relevant statutes and case 

law grant this court broad power to craft remand orders. 

[A]ny . . . court of appellate jurisdiction 

may affirm, modify, vacate, set aside or 

reverse any judgment, decree, or order of a 

court lawfully brought before it for review, 

and may remand the cause and direct the entry 

of such appropriate judgment, decree, or 

order, or require such further proceedings to 

be had as may be just under the circumstances. 

28 U.S.C. § 2106. This court has interpreted this power to allow 

it, for instance, to order the entry of a conviction for a lesserincluded offense when the evidence is insufficient to sustain a 

conviction for a greater offense. See United States v. SepúlvedaHernández, 752 F.3d 22, 28–31 (1st Cir. 2014). 

Carter argues that it would not be appropriate to 

reinstate the indictment, conviction, and sentence. Effectively, 

Carter argues that the only appropriate order is one that would 

place him in a position similar to where he would have been had 

the district court, after the remand, correctly predicted how this 
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court and the Supreme Court would rule in Voisine. Had the 

district court done so, Carter argues, he may have been able to 

resist reinstitution of the vacated conviction based on his 

original guilty plea, and gone to trial. But there is another 

possible retrospective reconstruction: We could craft an order 

that places Carter in a situation similar to where he would have 

been had the previous panel of this court correctly predicted how 

this court and the Supreme Court would rule in Voisine. Had that 

panel done so, it never would have vacated the conviction and 

sentence. We see no reason why the former approach would be more 

appropriate than the latter in these circumstances. As we have 

explained, Carter did not decide the question resolved in Voisine, 

so the latter approach is not inconsistent with Carter. Moreover, 

at this point, Carter has not demonstrated any error in either his 

conviction or his sentence, and he points to no remaining basis 

upon which he might assert innocence. 

Nor do Carter's unspecified "concerns" under the Speedy 

Trial Act or the statute of limitations alter this conclusion. 

Carter has not made any legal argument that the proceedings thus 

far have violated these statutes. On appeal, intimations toward 

potential arguments are insufficient. See United States v. 

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely 

to mention a possible argument in the most skeletal way, leaving 
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the court to do counsel's work, create the ossature for the 

argument, and put flesh on its bones."). 

While there are no perfect options, we think it best to 

get the parties back to where they would have been but for the 

Castleman-Voisine detour: before a panel of this court on a 

complete record with the sole remaining sentencing issue fully 

briefed. There is time to do this because Carter has finished his 

prison sentence, yet not begun his two-year period of supervised 

release.5 So on remand, the district court will promptly 

reinstitute the original conviction and sentence, ensuring before 

it does so that the record contains all materials germane to the 

sporting purposes or collection exception. Carter may then appeal 

that single issue, and it will be decided as it would have been 

but for the detour we have described above. The appeal will likely 

be expedited should Carter so request. 

IV. 

For the foregoing reasons, we reverse the order of the 

district court dismissing the indictment and remand the case to 

the district court for reinstatement of the indictment. We order, 

further, that (1) the district court shall reenter the April 23, 

2012 judgment, modified to indicate that Carter has already served 

 5 At oral argument, the government represented that Carter 

completed his state prison sentence in March 2016, so the 

supervised release term will commence once the sentence is 

reinstated. 
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the term of imprisonment and that only the supervised release term 

remains to be served; (2) the district court shall ensure that the 

record contains all materials germane to its prior decision not to 

apply the sporting purposes or collection exception; and (3) Carter 

shall have fourteen days from the date the district court reenters 

the conviction and sentence to file a notice of appeal challenging 

the district court's ruling on the sporting purposes or collection 

exception at his sentencing hearing. The proceeding shall 

otherwise go forward in accordance with this opinion.