United States v. Jonas , 689 F.3d 83 ( 2012 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 11-1773
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    MIKE K. JONAS,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Nancy Gertner, U.S. District Judge]
    Before
    Thompson, Selya and Dyk,*
    Circuit Judges.
    Lenore Glaser, with whom Law Office of Lenore Glaser was on
    brief, for appellant.
    Cynthia A. Young, Assistant United States Attorney, with whom
    Carmen M. Ortiz, United States Attorney, was on brief, for
    appellee.
    August 8, 2012
    ___________
    *Of the Federal Circuit, sitting by designation.
    SELYA, Circuit Judge.     Defendant-appellant Mike K. Jonas
    argues that, for the purpose of determining the applicability of
    the definition of "crime of violence" contained in the career
    offender guideline, USSG §4B1.2(a), any use of his Massachusetts
    conviction for assault and battery on a correctional officer
    (ABCO), Mass. Gen. Laws ch. 265, § 13D, is foreclosed by the
    rationale of our prior decision in United States v. Holloway, 
    630 F.3d 252
     (1st Cir. 2011).     The government demurs, arguing that we
    should apply the rationale of our post-Holloway decision in United
    States v. Dancy, 
    640 F.3d 455
     (1st Cir. 2011).         The district court
    agreed with the government, and so do we.
    The relevant facts are susceptible to a succinct summary.
    In the court below, the defendant pleaded guilty to two counts:
    possessing counterfeit securities and possessing a firearm as a
    felon.   
    18 U.S.C. §§ 513
    (a), 922(g)(1). The revised presentence
    investigation report recommended a guideline sentencing range (GSR)
    of 70 to 87 months.     This calculation was driven, in part, by a
    provision in the federal sentencing guidelines calling for an
    increased base offense level if a defendant who is convicted of
    unlawful firearm possession has previously "sustain[ed] at least
    two   felony   convictions   of   either   a   crime   of   violence   or   a
    controlled substance offense."           USSG §2K2.1(a)(2).      For this
    purpose, the guideline cross-references to USSG §4B1.2(a) to supply
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    the definition for a "crime of violence."    USSG §2K2.1, comment.
    (n.1).
    At the disposition hearing, the defendant conceded that
    he had a prior drug conviction that constituted a predicate felony
    under the career offender guideline.   He argued, however, that the
    second predicate felony relied upon by the government — his
    conviction for ABCO — was not a conviction for a crime of violence
    and, thus, could not qualify as the essential second predicate.
    The district court concluded that ABCO was properly classified as
    a crime of violence, applied section 2K2.1(a)(2), and — after
    varying downward from the GSR, see 
    18 U.S.C. § 3553
    (a) — imposed a
    60-month incarcerative term.   This timely appeal ensued.
    This is a rifle-shot appeal: it turns exclusively on the
    scope of the phrase "crime of violence" as that phrase is used in
    the federal sentencing guidelines. This question engenders de novo
    review.   United States v. Williams, 
    529 F.3d 1
    , 3 (1st Cir. 2008).
    Under the career offender guideline, a crime of violence
    is any offense punishable by more than one year of imprisonment
    that either "(1) has as an element the use, attempted use, or
    threatened use of physical force against the person of another, or
    (2) is burglary of a dwelling, arson, or extortion, involves use of
    explosives, or otherwise involves conduct that presents a serious
    potential risk of physical injury to another."    USSG §4B1.2(a).
    This definition is nearly identical to the definition of a "violent
    -3-
    felony" contained in the Armed Career Criminal Act (ACCA), 
    18 U.S.C. § 924
    (e)(2)(B).   Recognizing    this   resemblance,   courts
    consistently have held that decisions construing one of these
    phrases generally inform the construction of the other. See, e.g.,
    Holloway, 
    630 F.3d at
    254 n.1; United States v. Richards, 
    456 F.3d 260
    , 263 n.2 (1st Cir. 2006).       Consequently, we refer to both
    bodies of jurisprudence seamlessly.1       See United States v. Hart,
    
    674 F.3d 33
    , 41 n.5 (1st Cir. 2012); United States v. Willings, 
    588 F.3d 56
    , 58 n.2 (1st Cir. 2009).
    Under binding Supreme Court precedent, we must take a
    categorical approach to the question of whether a crime ranks as a
    crime of violence.     See Sykes v. United States, 
    131 S. Ct. 2267
    ,
    2272 (2011).      Our focus is on the elements of the offense as
    delineated in the statute of conviction (as judicially glossed) and
    the standard charging language.    See Johnson v. United States, 
    130 S. Ct. 1265
    , 1269-70 (2010); Dancy, 
    640 F.3d at 468
    . This paradigm
    requires that we eschew consideration of the offender's particular
    conduct.     See Sykes, 
    131 S. Ct. at 2272
    ; James v. United States,
    
    550 U.S. 192
    , 202 (2007).
    1
    This congruence between "crime of violence" and "violent
    felony" is especially important here.     The key precedents upon
    which the parties rely (Holloway and Dancy) are both cases
    involving whether or not a particular offense constitutes a violent
    felony under the ACCA.     The reasoning of those cases is fully
    transferrable to the precincts patrolled by the career offender
    guideline.
    -4-
    Under the relevant Massachusetts statute, assault and
    battery can be committed in various ways — some that may involve
    the use of violent force and some that may not.    See Holloway, 
    630 F.3d at 254-60
    .       Thus, the specification set out in section
    4B1.2(a)(1), sometimes called the "force clause," Hart, 
    674 F.3d at 41
    , is not categorically applicable.     See Holloway, 
    630 F.3d at 254-60
    .    Assuming, favorably to the defendant, that simple assault
    and battery and assault and battery on a correctional officer are
    analyzed in the same way for purposes of the force clause — and the
    government has not suggested the contrary — for ABCO to be regarded
    categorically as a crime of violence, it must fit within the
    "otherwise clause" of the definition set out in the career offender
    guideline.     So viewed, the putative predicate must be an offense
    that "otherwise involves conduct that presents a serious potential
    risk of physical injury to another."    USSG §4B1.2(a)(2).
    To qualify as a crime of violence under the otherwise
    clause, an offense must "(1) present a degree of risk similar to
    the degree of risk posed by the enumerated offenses, and (2) be
    roughly similar in kind to the enumerated offenses."      Hart, 
    674 F.3d at
    41 (citing Begay v. United States, 
    553 U.S. 137
    , 143
    (2008)).     With respect to the first of these criteria (degree of
    risk), "the proper inquiry is whether the conduct encompassed by
    the elements of the offense, in the ordinary case, presents a
    serious potential risk of injury to another."     James, 550 U.S. at
    -5-
    208.    This determination hinges on a commonsense assessment of the
    risk of violence that typically ensues during the commission of the
    crime.    See Sykes, 
    131 S. Ct. at 2273-74
    ; James, 
    550 U.S. at
    203-
    07.
    With respect to the second criterion (similar in kind),
    offenses that involve stringent mens rea requirements are easily
    captured.     See Sykes, 
    131 S. Ct. at 2275-76
    ; United States v.
    Grupee, 
    682 F.3d 143
    , 149 (1st Cir. 2012) (Souter, J.).            Strict
    liability, negligence, or recklessness crimes are more elusive.
    See Sykes, 
    131 S. Ct. at 2275-76
    ; Begay, 
    553 U.S. at 144-46
    .
    The Supreme Court has crafted a touchstone for the
    similar in kind inquiry: courts must ask whether, categorically
    speaking,    putative   predicate   offenses     "involve[]   purposeful,
    violent, and aggressive conduct."         Williams, 
    529 F.3d at
    7 (citing
    Begay, 
    553 U.S. at 144-45
    ).     This question is sometimes difficult
    to answer.    "Adjectives like 'purposeful' and 'aggressive' denote
    qualities that are ineluctably manifested in degree and appear in
    different combinations; they are, therefore, imprecise aids." 
    Id.
    Mindful of this inherent imprecision, we have emphasized that an
    offense need only be "'roughly similar' in kind to the enumerated
    offenses."     Dancy, 
    640 F.3d at 468
     (quoting Begay, 
    553 U.S. at 143
    ).
    In the case at hand, the defendant concedes that he was
    charged with, and convicted of, ABCO.          He argues, however, that
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    ABCO       fails    both   the    degree      of    risk    and   similar    in   kind
    requirements. Determining whether these requirements are satisfied
    is a matter of federal law.            See United States v. Giggey, 
    551 F.3d 27
    , 39 (1st Cir. 2008) (en banc).
    We   start   with   the    similar      in   kind   inquiry.    The
    defendant's argument is straightforward.                   It depends on Holloway,
    in which we held that "because the Massachusetts simple assault and
    battery statute covers multiple offenses, at least one of which,
    reckless battery, is categorically not a violent felony, a court
    may only rely on an assault and battery conviction if it can
    ascertain that the defendant was convicted of the violent form of
    the offense (e.g., harmful battery)."                      
    630 F.3d at 262
    .2       The
    defendant notes that there is nothing in the charging language that
    indicates how he committed ABCO.               Building on this foundation, he
    maintains that ABCO, if committed recklessly, is no different than
    the simple assault and battery offense that Holloway determined did
    not qualify as a violent felony.                   See 
    id.
     (discussing Mass. Gen.
    Laws ch. 265, § 13A).           As he sees it, the mere fact that an assault
    2
    Under Massachusetts law, simple assault and battery is a
    lesser included offense of assault and battery on a public
    employee. See Commonwealth v. Colon, 
    958 N.E.2d 56
    , 68 (Mass. App.
    Ct. 2011); Commonwealth v. Rosario, 
    430 N.E.2d 866
    , 866 (Mass. App.
    Ct. 1982). Both assault and battery on a correctional officer and
    assault and battery on a police officer are species of the broader
    crime of assault and battery on a public employee. See Mass. Gen.
    Laws ch. 265, § 13D.
    -7-
    and battery is committed on a particular type of person (e.g., a
    correctional officer) does not transmogrify the act.
    Holloway, however, cannot be read in a vacuum. In Dancy,
    
    640 F.3d at 467-70
    , decided a few months after Holloway, we
    distinguished simple assault and battery, Mass. Gen. Laws ch. 265,
    § 13A, from assault and battery on a police officer (ABPO), id.
    § 13D.   We explained that, under the Massachusetts statute, ABPO
    requires the prosecution to prove three elements in addition to
    those needed for simple assault and battery: that the victim was a
    police officer, that he was acting in his official capacity, and
    that the defendant knew as much.         See Dancy, 
    640 F.3d at 468
    ;
    accord 
    Mass. Gen. Laws ch. 277, § 79
     (setting forth standard
    charging language); Commonwealth v. Colon, 
    958 N.E.2d 56
    , 68 (Mass.
    App. Ct. 2011).    We then concluded that even under a recklessness
    theory of assault and battery liability, the additional elements
    required for an ABPO conviction ensure that "purposeful conduct is
    the   norm,"   making   ABPO   sufficiently   similar   in   kind   to   the
    enumerated offenses to qualify as a violent felony.            Dancy, 
    640 F.3d at
    466-69 (citing with approval United States v. Fernandez,
    
    121 F.3d 777
    , 779-80 (1st Cir. 1997), for the proposition that ABPO
    is a categorical crime of violence).
    Dancy is the beacon by which we must steer.        The text of
    Mass. Gen. Laws ch. 265, § 13D is generic in nature, proscribing
    assault and battery on a "public employee."        It "is separate and
    -8-
    distinct   from   the    statute   criminalizing   simple   [assault   and
    battery]."    Dancy, 
    640 F.3d at 468
    .     It applies in exactly the same
    way to police officers, see Colon, 958 N.E.2d at 68, as to
    correctional officers, see Commonwealth v. Ford, 
    468 N.E.2d 663
    ,
    665 (Mass. App. Ct. 1984).         And even though the Massachusetts
    Supreme Judicial Court has not definitively set out the elements
    required for ABCO under section 13D, there is no principled basis
    for believing that the elements are any different than the elements
    set out for ABPO.       Cf. Commonwealth v. Deschaine, 
    932 N.E.2d 854
    ,
    861 (Mass. App. Ct. 2010) (explaining that a conviction for assault
    and battery on a correctional officer under Mass. Gen. Laws ch.
    127, § 38B requires the Commonwealth "to prove the defendant knew
    that the person he struck was a correction officer."). Indeed, the
    defendant appears to concede that the elements of ABCO parallel
    those of ABPO.    See Appellant's Br. at 6 ("The crime of assault and
    battery on a correctional officer adds, as an element of the
    offense, that the victim was a correctional officer, known to the
    defendant as such, and acting in his or her official capacity.").
    As in ABPO, the additional elements of ABCO — that the
    victim was a correctional officer, that he was acting in an
    official capacity, and that the defendant knew as much — ensure
    that "purposeful conduct is the norm." See Dancy, 
    640 F.3d at
    468-
    70.   This means, then, that ABCO — like ABPO — is roughly similar
    -9-
    in   kind    to    the    offenses     enumerated     in   connection   with    the
    "otherwise" clause of section 4B1.2(a)(2).
    The defendant's fallback position is that ABCO presents
    a substantially lesser degree of risk than ABPO and, therefore,
    falls below the level of risk presented by the enumerated offenses.
    The defendant contends that, unlike police officers, correctional
    officers     are     usually    unarmed     and     interact    informally     with
    prisoners.        This contention rings hollow.
    The proper comparison in a degree of risk analysis is
    between the risks typically accompanying the offense of conviction
    and the risks typically accompanying the offenses enumerated in
    connection with the "otherwise" clause of the career offender
    guideline.    See Hart, 
    674 F.3d at 41
    .           Such a comparison guides the
    requisite determination as to whether categorically speaking a
    particular offense "presents a serious potential risk of physical
    injury to another."         Sykes, 
    131 S. Ct. at 2273
    ; see James, 
    550 U.S. at 203
    .     By its very nature, this is an "inherently probabilistic"
    analysis.         Dancy, 
    640 F.3d at 470
     (internal quotation marks
    omitted).
    We    have    little    difficulty       in   concluding   that   ABCO
    typically presents a serious potential risk of injury to another
    that is not only comparable to, but arguably greater than, the
    risks     typically       associated    with    the    offenses   enumerated     in
    connection with the "otherwise" clause of the career offender
    -10-
    guideline. We previously have held that assault on a prison guard,
    by its nature, presents a serious risk of injury to another.3   See
    United States v. Gignac, 
    119 F.3d 67
    , 69 (1st Cir. 1997).
    "'Prisons are inherently dangerous institutions,' where prison
    guards are greatly outnumbered by inmates — many of whom have a
    history of violence or of aggressive tendencies." United States v.
    Johnson, 
    616 F.3d 85
    , 94 (2d Cir. 2010) (citation omitted) (quoting
    Lewis v. Casey, 
    518 U.S. 343
    , 391 (1996)); accord Johnson v.
    California, 
    543 U.S. 499
    , 515 (2005); Hudson v. Palmer, 
    468 U.S. 517
    , 526 (1984).     "Guards and inmates co-exist in direct and
    intimate contact.   Tension between them is unremitting."   Wolff v.
    McDonnell, 
    418 U.S. 539
    , 562 (1974).
    Moreover, a degree of risk analysis must take into
    account the dangers that third parties are likely to create.    See
    Williams, 
    529 F.3d at 5-8
    .   Assault and battery on a correctional
    officer (even an unarmed correctional officer) is like throwing a
    lit match into a tinder box: it inevitably "creates a risk that
    fellow inmates will join in the disturbance, oppose it with force,
    or simply use its occurrence to engage in other acts of violence."
    3
    To be sure, neither the Massachusetts statutes nor the case
    law requires that a correctional officer work in a prison. But
    "[i]t need not be the case that 'every conceivable factual offense
    covered by a statute must necessarily present a serious potential
    risk of injury before the offense can be deemed a violent felony.'"
    Dancy, 
    640 F.3d at 470
     (quoting James, 
    550 U.S. at 208
    ). In the
    ordinary course, correctional officers work at correctional
    facilities, so the categorical approach directs our attention to
    that environment.
    -11-
    Johnson, 
    616 F.3d at 94
    .    The setting is the key: "[t]he risk of
    physical injury arises not only from this confrontation, but also
    from the fact that prisons are like powder kegs, where even the
    slightest disturbance can have explosive consequences."    
    Id.
    To say more would be to paint the lily.    Common sense
    dictates that ABCO, categorically speaking, presents a sufficiently
    serious potential risk of injury to another to satisfy the degree
    of risk requirement. It is, moreover, sufficiently similar in kind
    to the offenses enumerated in connection with the "otherwise"
    clause of the career offender guideline.      Under the categorical
    approach, no more is exigible.
    We need go no further. For the reasons elucidated above,
    we hold that the claim of sentencing error is without merit.
    Affirmed.
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