United States v. Sumrall , 690 F.3d 42 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1753
UNITED STATES OF AMERICA,
Appellee,
v.
TONY SUMRALL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Thompson, Selya and Dyk,*
Circuit Judges.
J. Hilary Billings, Assistant Federal Defender, on brief for
appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
August 17, 2012
___________
*Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. This appeal invites us to
repastinate soil already well plowed. We decline the invitation.
The relevant facts are straightforward. Defendant-
appellant Tony Sumrall pleaded guilty to possession with intent to
distribute over five grams of cocaine base. See 21 U.S.C.
§ 841(a)(1), (b)(1)(B). At the disposition hearing, the government
sought to invoke the career offender guideline, USSG §4B1.1(a).
That guideline applies where the "offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense" and the defendant has at least two prior felony
convictions for controlled substance offenses or crimes of
violence. Id. A "crime of violence" is defined as 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." Id. §4B1.2(a).
Under binding Supreme Court precedent, this definition is
to be applied categorically. See Sykes v. United States, 131 S.
Ct. 2267, 2272 (2011); James v. United States, 550 U.S. 192, 202
(2007). The definition itself is nearly identical to the
definition of a "violent felony" embedded in the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). "Recognizing this
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resemblance, courts consistently have held that decisions
construing one of these phrases generally inform the construction
of the other." United States v. Jonas, ___ F.3d ___, ___ (1st Cir.
2012) [No. 11-1773, slip op. at 4].
The appellant has a prior felony conviction for armed
robbery, which is admittedly a crime of violence. He also has a
prior Massachusetts conviction for assault and battery on a police
officer (ABPO). See Mass. Gen. Laws ch. 265, § 13D. The pivotal
question in this case is whether the Massachusetts ABPO conviction
counts as a conviction for a crime of violence (and, thus,
constitutes the second predicate conviction required to confer
career offender status).
The district court answered this question in the
affirmative. It used the career offender guideline to enhance the
applicable guideline sentencing range and sentenced the appellant
to serve 188 months in prison. This timely appeal followed.
The sole issue on appeal is whether the district court
erred in classifying the appellant's Massachusetts ABPO conviction
as a crime of violence. In resolving this question, we do not
write on a pristine page. In United States v. Dancy, 640 F.3d 455,
466-70 (1st Cir. 2011), we ruled that a Massachusetts conviction
for ABPO was, categorically speaking, a violent felony under the
"otherwise" clause of the ACCA. The Dancy court explicitly
reaffirmed our earlier decision in United States v. Fernandez, 121
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F.3d 777, 779-80 (1st Cir. 1997), which held that ABPO is a
categorical crime of violence under the career offender guideline.
See Dancy, 640 F.3d at 466-70. More recently, we ruled that an
analogous crime — assault and battery on a correctional officer
under Mass. Gen. Laws ch. 265, § 13D — was, from a categorical
standpoint, a crime of violence within the purview of the career
offender guideline. See Jonas, ___ F.3d at ___ [slip op. at 12].
There is no need to repeat what we already have written.
The short of it is that, applying the reasoning of the
aforementioned decisions, assault and battery on a police officer
under the Massachusetts statute is categorically a crime of
violence.
In an effort to deflect this conclusion, the appellant
makes two arguments that merit brief comment. Neither argument is
persuasive.
The appellant first argues that our prior decisions do
not deal with the "offensive touching" branch of assault and
battery (sometimes called "offensive battery"). See Commonwealth
v. Eberhart, 965 N.E.2d 791, 798-99 (Mass. 2012). This is wishful
thinking. In Dancy, we took a categorical view of the
Massachusetts statute as a whole and held that, from that coign of
vantage, ABPO qualifies as a violent felony. 640 F.3d at 466-70.
We reached essentially the same conclusion in a number of
subsequent decisions. See, e.g., United States v. Grupee, 682 F.3d
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143, 148-49 (1st Cir. 2012) (Souter, J.) (applying Dancy to the
definition of crime of violence); United States v. Luna, 649 F.3d
91, 107 (1st Cir. 2011). These decisions necessarily encompass all
of the branches of the statute (including "offensive battery") and,
thus, leave no room for the argument that the appellant seeks to
advance.1
The appellant's remaining argument posits that the record
does not adequately show that he committed each of the elements
that collectively comprise the offense of assault and battery on a
police officer. See Dancy, 640 F.3d at 468 (delineating elements
of the offense). In particular, he claims that there is no
competent showing that he knew that the person he assaulted was a
police officer engaged in official duties. This argument rings
hollow.
1
In all events, the Massachusetts Supreme Judicial Court has
noted that "[o]ffensive battery is a form of intentional battery."
Eberhart, 965 N.E.2d at 798 n.13; see also id. at 798
(characterizing offensive battery as an intentional touching
without the victim's consent that is an "affront to the victim's
personal integrity"). Ascribing an element of purposefulness to
the putative predicate offense strengthens the case for classifying
that offense as a crime of violence under the "otherwise" clause.
See Sykes, 131 S. Ct. at 2275-76; Grupee, 682 F.3d at 149; cf.
Commonwealth v. Colon, 958 N.E.2d 56, 68-69 (Mass. App. Ct. 2011)
(holding "that ABPO, even when based on offensive battery,
qualifies as a 'violent crime' under the residual clause" of the
nearly identical Massachusetts career criminal statute).
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The record (particularly the complaint and the docket
report)2 makes manifest that the appellant was convicted of assault
and battery on a police officer. For the purposes of a federal
sentencing enhancement, proof of a defendant's conviction for a
crime following a guilty plea or a trial is sufficient to ground a
finding that the defendant committed all the elements of the
offense. Because knowledge is an element of ABPO, any professed
lack of knowledge is, therefore, at most, the basis for a
collateral claim that must be raised in a state, not a federal,
court. See Custis v. United States, 511 U.S. 485, 487 (1994)
(holding that in a federal sentencing proceeding "a defendant has
no [] right (with the sole exception of convictions obtained in
violation of the right to counsel) to collaterally attack prior
convictions"); United States v. Delgado, 288 F.3d 49, 52 & n.4 (1st
Cir. 2002) (applying Custis in the context of the career offender
guideline).
2
The appellant argues that the docket report cannot be
considered for the purpose of proving the nature of a predicate
conviction. See Shepard v. United States, 544 U.S. 13, 16 (2005)
(describing a compendium of materials that may be used for this
purpose, including "the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
[assented-to] explicit factual finding"). But Shepard cannot be
read so grudgingly: the Court was careful to state that "some
comparable judicial record" may also be considered. Id. at 26.
The docket report at issue here comes within the purview of
acceptable Shepard documents. See United States v. Howard, 599
F.3d 269, 270-73 (3d Cir. 2010); United States v. McKenzie, 539
F.3d 15, 18-19 (1st Cir. 2008).
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We need go no further. We hold, without serious
question, that a Massachusetts conviction for assault and battery
on a police officer is categorically a conviction for a crime of
violence under the career offender guideline. Accordingly, the
district court did not err in enhancing the appellant's guideline
sentencing range.
Affirmed.
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