United States v. Mouscardy

United States Court of Appeals
For the First Circuit
No. 11-2356
UNITED STATES,
Appellee,
v.
REGINALD MOUSCARDY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Howard, Stahl and Lipez,
Circuit Judges.
Elaine Pourinski for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
July 15, 2013
LIPEZ, Circuit Judge. Appellant Reginald Mouscardy was
charged with one count of being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). Mouscardy moved to suppress
the firearm, arguing that it was obtained through an illegal search
and seizure in violation of the Fourth Amendment. The district
court denied the motion, and the jury convicted Mouscardy of the
charged offense. Mouscardy now appeals the district court's denial
of his motion to suppress. Additionally, he appeals the district
court's determination that he is an armed career criminal.
We affirm.
I.
The facts, as supported by the record, are as follows.
On March 11, 2010, at approximately 12:30 p.m., an individual
called 911 to report an assault at the corner of Belmont and Ferry
Streets on the boundary of Everett and Malden, Massachusetts. The
call was routed to the Everett Police Department. The caller
reported that he saw a "man beating up his girlfriend or his wife,"
adding that the man was "giving it to her pretty good." The caller
also provided descriptions of the man and the woman.
The 911 dispatcher relayed the information to police
officers, describing the incident as a "possible domestic assault
in progress" on the corner of Belmont and Ferry Streets. Everett
Police Officer Matthew Cunningham and Sergeant Robert Zaino were
the first to respond. When the officers arrived, they found a man
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and a woman who fit the descriptions given by the 911 caller. The
man was later determined to be Reginald Mouscardy. Because the
officers believed that the alleged assault may have occurred on the
Malden side of Belmont Street, Officer Cunningham had Everett
dispatch contact Malden Police and request that they respond to the
scene.
Due to the nature of the 911 call, the Everett officers
separated Mouscardy and the woman in order to see whether they
would provide consistent accounts of the alleged incident. Officer
Cunningham took Mouscardy around the corner to the Malden side of
Belmont Street, where Mouscardy offered that nothing had happened
and that there was no problem. Officer Cunningham did not question
Mouscardy at this point.
After a brief period -- Officer Cunningham testified that
it was two to three minutes after his initial contact with
Mouscardy and the woman -- Malden Police Officer Robert Selfridge
arrived on the scene. Officer Selfridge first spoke with Sergeant
Zaino and the woman, who gave her name as Shannon Agnew. Agnew,
who appeared upset, told Officer Selfridge that nothing had
happened and that there had been no assault. She indicated that
she knew Mouscardy and that she had been in a relationship with him
for about three months, but she did not provide his name to the
officers. Officer Selfridge testified that his interaction with
Sergeant Zaino and Agnew lasted about thirty-five to forty seconds.
-3-
Officer Selfridge then went around the corner to
interview Mouscardy. Mouscardy had his back against the wall of a
building, and Officer Cunningham was to Mouscardy's left. Officer
Selfridge first asked Officer Cunningham if Mouscardy had
identified himself; Officer Cunningham informed him that Mouscardy
refused to give his name. Officer Selfridge then asked Mouscardy
for his name or any form of identification numerous times, but
Mouscardy refused to comply, simply repeating that nothing had
happened.
Mouscardy had grown visibly "agitated and fidgety" by
this point, and he had begun "eye-balling" the area. Keeping his
right hand in his right jacket pocket, Mouscardy began to circle
away from the wall of the building until he was almost standing on
the street. Mouscardy's actions and demeanor made Officer
Selfridge uncomfortable, and he asked Officer Cunningham if
Mouscardy had been patted down. After Officer Cunningham told
Officer Selfridge that he had not performed a pat-down, Officer
Selfridge informed Mouscardy that he was going to search him for
weapons, and asked him to take his right hand out of his jacket
pocket. Mouscardy did not comply. Officer Selfridge initiated the
pat-down. When his left hand reached Mouscardy's right jacket
pocket, Mouscardy removed his right hand from the pocket and struck
Officer Selfridge's left hand with enough force to throw it above
Officer Selfridge's shoulder. Officer Selfridge then attempted to
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return his left hand to Mouscardy's right jacket pocket, and
Mouscardy attempted to slap it away again. Officer Selfridge
managed to grab the pocket, but Mouscardy then turned away and
started to flee. Although the stitching tore slightly, the
contents of the pocket remained enclosed and therefore unknown to
the officers.
Officers Cunningham and Selfridge gave chase as Mouscardy
fled on foot. Officer Selfridge estimated that he was within ten
to twelve feet of Mouscardy throughout the pursuit, while Officer
Cunningham followed slightly behind. As Mouscardy ran up the
driveway of a residence on Rich Street in Everett, Officer
Cunningham ran to the right side of the house in an apparent
attempt to block Mouscardy's path of escape while Officer Selfridge
remained on Mouscardy's heels.
During the chase, Officer Selfridge noticed that
Mouscardy was struggling to remove something from his right pocket.
Mouscardy managed to successfully remove the object, which he then
transferred from his right hand to his left hand. Officer
Selfridge observed that the object was a small handgun. In order
to alert Officer Cunningham, Officer Selfridge screamed "he's got
a gun" as he continued his pursuit. Mouscardy disappeared behind
the Rich Street residence, and Officer Selfridge, now knowing that
Mouscardy was armed, drew his weapon and maneuvered carefully
around the corner of the house, where he observed Mouscardy
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attempting to scale a chain-link fence with the pistol still in
hand. Officer Cunningham joined Officer Selfridge in the back yard
of the residence.
After several commands from police to drop the gun,
Mouscardy finally placed the pistol on top of a green plastic
container and walked toward the officers. A struggle ensued when
the officers attempted to handcuff Mouscardy pursuant to an arrest,
but he was eventually restrained near the basement door of the
residence. Officers retrieved the gun, which was determined to be
a .32 caliber Beretta. Mouscardy's true identity was discovered
when he was booked at the police station.
On March 31, 2010, a grand jury returned an indictment
against Mouscardy on a charge of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Mouscardy moved to
suppress the gun, arguing that (1) he had been illegally seized
after both he and Agnew told officers that no assault had occurred;
(2) the pat-down search was unconstitutional; and (3) his flight
from the officers could not trigger a reasonable suspicion of
criminal activity because it was spurred by the unconstitutional
pat-down search. Following an evidentiary hearing, the district
court denied the motion. The court found that it did not have to
address Mouscardy's arguments, as the gun was discovered through a
source independent of the allegedly unconstitutional means: by
striking Officer Selfridge during the pat-down, Mouscardy's actions
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violated Massachusetts criminal law, and the officers were
therefore justified in chasing and arresting him. The weapon was
therefore recovered incident to a lawful arrest. United States v.
Mouscardy, No. 10-10100-PBS, 2011 WL 2600550, at *2 (D. Mass. June
28, 2011).
The case proceeded to trial. On July 26, 2011, the jury
found Mouscardy guilty. He was sentenced to twenty years in prison
as an armed career criminal and five years of supervised release.
This timely appeal followed.
II.
Mouscardy argues that the district court erred in denying
his motion to suppress. We review the denial of a motion to
suppress for clear error as to findings of fact. United States v.
Infante, 701 F.3d 386, 392 (1st Cir. 2012). We review de novo any
conclusions of law, as well as the application of law to facts.
Id.
Although the district court based its denial on the
ground that the weapon was recovered incident to a lawful arrest
for striking a police officer, "[w]e may affirm the district
court's decision on any ground made manifest in the record."
United States v. Hart, 674 F.3d 33, 39 (1st Cir. 2012). Because we
find that both the investigatory stop and the pat-frisk were
permissible, we need not determine whether the gun was also
admissible under the theory used by the district court.
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The Fourth Amendment's protections against "unreasonable
searches and seizures" by the government "extend to brief
investigatory stops of persons . . . that fall short of traditional
arrest." United States v. Arvizu, 534 U.S. 266, 273 (2002). These
"brief investigatory stops" are commonly referred to as Terry
stops. See Terry v. Ohio, 392 U.S. 1 (1968). A Terry stop is, in
essence, "a brief detention of an individual for questioning based
on a police officer's reasonable suspicion that the person is or
has been engaged in criminal activity." United States v. Brake,
666 F.3d 800, 804 (1st Cir. 2011). Because the temporary detention
of an individual constitutes a seizure for Fourth Amendment
purposes, a Terry stop is "subject to the constitutional imperative
that it must be reasonable under all the circumstances." United
States v. Coplin, 463 F.3d 96, 100 (1st Cir. 2006) (quoting United
States v. Romain, 393 F.3d 63, 70-71 (1st Cir. 2004)) (internal
quotation mark omitted).
Our review of a Terry stop involves a two-step analysis.
First, we ascertain whether the stop was justified at its
inception. United States v. Gates, 709 F.3d 58, 62 (1st Cir.
2013). Second, we determine whether the "actions undertaken during
the stop [were] reasonably related in scope to the stop itself
'unless the police [had] a basis for expanding their
investigation.'" Id. (quoting United States v. Henderson, 463 F.3d
27, 45 (1st Cir. 2006)).
-8-
A. Initiation of the Stop
Mouscardy maintains that he was illegally seized for
Fourth Amendment purposes. In Mouscardy's view, based on the
officers' observations at the scene and the statements by Mouscardy
and Agnew that no assault had taken place, the police should have
determined that there was no evidence of the alleged assault, and
Mouscardy should have been allowed to leave.
The facts support a reasonable suspicion for the
investigatory stop. Officer Cunningham and Sergeant Zaino did not
approach Mouscardy and Agnew on a mere "hunch." See United States
v. Sokolow, 490 U.S. 1, 7 (1989) ("The officer . . . [making the
Terry stop] must be able to articulate something more than an
'inchoate and unparticularized suspicion or hunch.'" (quoting
Terry, 392 U.S. at 27)). The officers found Mouscardy and Agnew at
the location that the caller had provided no more than a few
minutes after the Everett Police Department received the 911 call
reporting the assault. In his own recitation of the facts
presented before the district court, Mouscardy offers that the 911
caller "described the physical appearances of the male and female
involved in the alleged assault. . . . When [the officers] arrived
they saw two individuals who matched the description." These facts
alone are sufficient to establish that the officers had an
objectively reasonable basis for suspecting wrongdoing on the part
of Mouscardy. See United States v. Pardue, 385 F.3d 101, 105 (1st
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Cir. 2004) (finding stop reasonable at its inception where officer
"knew that a domestic assault had been committed in the vicinity,
that it had been committed by someone whose physical description
matched that of the individual he saw, and that the assailant had
departed from the scene on foot").
B. Scope of the Stop
Having determined that "the officer[s'] actions were
justified at their inception," we now consider "whether the
officer[s'] subsequent actions were fairly responsive to the
emerging tableau." United States v. Chhien, 266 F.3d 1, 6 (1st
Cir. 2001). Mouscardy challenges both the duration of the stop and
the legality of the frisk. We consider both arguments in turn.
1. Duration of the Stop
Mouscardy argues that the stop was unnecessarily
prolonged. While it is true that "[a] lawful Terry stop may . . .
metamorphose into an overly prolonged . . . detention (and, thus,
become unlawful)," United States v. Lee, 317 F.3d 26, 31 (1st Cir.
2003), the length of the stop in this case was not unreasonable.
After separating Mouscardy and Agnew, Officer Cunningham
stood with Mouscardy and waited for the arrival of the Malden
officers. According to Officer Cunningham, no questioning took
place during this time. When Officer Selfridge arrived, he briefly
asked Mouscardy questions related to the reported domestic assault
and attempted to learn Mouscardy's identity. Officer Cunningham
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testified that Officer Selfridge arrived on the scene within two to
three minutes of his initial contact with Mouscardy, and that
Mouscardy began his flight (and thus effectively ended the Terry
stop) "maybe three minutes" after Officer Selfridge arrived.
Officer Selfridge's testimony that Mouscardy fled within a minute
and a half to three minutes of his arrival supports Officer
Cunningham's version of the events.
Based on these facts, it is apparent that the stop was
brief. Although not dispositive alone, the relative brevity of the
detainment supports the conclusion that Mouscardy's seizure did not
exceed the boundaries of a permissible Terry stop. See United
States v. Rabbia, 699 F.3d 85, 93 (1st Cir. 2012) (no de facto
arrest where suspect was detained for thirty minutes); United
States v. Teemer, 394 F.3d 59, 66 (1st Cir. 2005) (no de facto
arrest where suspect was detained for "slightly over 30 minutes");
United States v. Quinn, 815 F.2d 153, 156 (1st Cir. 1987) (no de
facto arrest where police interrogated suspect for twenty to
twenty-five minutes).
In addition to the overall brevity of the stop, there is
no evidence that it was unreasonably prolonged. When assessing the
appropriateness of the duration of an investigatory stop, we ask
"whether the length of [the] detention was reasonable, considering
'the law enforcement purposes to be served by the stop . . . and
whether the police diligently pursued a means of investigation that
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was likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant.'" United
States v. Acosta-Colon, 157 F.3d 9, 20 (1st Cir. 1998) (omission in
original) (quoting United States v. McCarthy, 77 F.3d 522, 530 (1st
Cir. 1996)); see also United States v. Sharpe, 470 U.S. 675, 686
(1985). Here the officers' purpose for stopping and questioning
Mouscardy was to investigate the reported domestic assault.
Officer Selfridge testified that as part of investigating such
domestic incidents, he identifies the parties in order to determine
whether the individuals have any outstanding arrest warrants or
restraining orders. It is undeniably both appropriate and
important for an officer to take steps to identify the parties
involved in a domestic dispute. See Hiibel v. Sixth Judicial Dist.
Court of Nev., 542 U.S. 177, 186 (2004) ("Identity may prove
particularly important . . . where the police are investigating
what appears to be a domestic assault. Officers called to
investigate domestic disputes need to know whom they are dealing
with in order to assess the situation, the threat to their own
safety, and possible danger to the potential victim."). The "means
of investigation" Officer Selfridge used to gain this information
could not have been more straightforward: he asked Mouscardy his
name. Mouscardy, however, refused to reveal his identity or
produce any form of identification. Officer Selfridge asked again,
and again Mouscardy refused. Officer Selfridge testified that he
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asked Mouscardy to identify himself or produce identification half
a dozen times, to no avail.
We have previously held that in evaluating a claim of
unreasonable prolongation of an investigative stop, the fact that
a suspect's responses to the officer's questions "were evasive and,
at times, defiant is relevant in evaluating the scope of the
officer['s] conduct." McCarthy, 77 F.3d at 531. Mouscardy's
unresponsiveness to Officer Selfridge's reasonable inquiries
prevented the officers from completing their investigation more
quickly. Mouscardy cannot profit from the delay he himself caused.
See Sharpe, 470 U.S. at 688 (rejecting contention that twenty-
minute stop was unreasonable where officers acted diligently and
the "suspect's actions contribute[d] to the added delay about which
he complain[ed]").
2. The Frisk
Mouscardy argues that even if the investigatory stop was
justified, Officer Selfridge's attempt to conduct a pat-frisk was
not. According to Mouscardy, Officer Selfridge initiated the frisk
in the absence of a reasonable belief that Mouscardy was armed and
dangerous.
As Mouscardy correctly notes, "we have held that a de
facto arrest occurs when 'a reasonable man in the suspect's
position would have understood his situation, in the circumstances
then obtaining, to be tantamount to being under arrest.'" United
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States v. Jones, 700 F.3d 615, 624 (1st Cir. 2012) (quoting United
States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994)). However, we
have also made clear that "in making this assessment, we . . . must
keep in mind that police conducting a Terry stop are entitled to
take reasonable measures to protect their own safety and taking
such measures does not transform a Terry stop into an arrest." Id;
see also United States v. Pontoo, 666 F.3d 20, 30 (1st Cir. 2011)
("In a world fraught with peril, officer safety must have a place
at the forefront of police work."); United States v. Mohamed, 630
F.3d 1, 6 (1st Cir. 2010) (noting that during a Terry stop,
"[o]fficers are permitted to take actions to protect their own
safety and the safety of others in the area"); United States v.
Walker, 924 F.2d 1, 4 (1st Cir. 1991) ("[An officer's] concern[]
for his own safety is of paramount importance in assessing the
appropriateness of the action taken."). These reasonable measures
include "conducting a pat-frisk if under all the circumstances they
have 'a particularized and objective basis to suspect the
individual ha[s] a weapon.'" United States v. Dancy, 640 F.3d 455,
461 (1st Cir. 2011) (alteration in original) (quoting Mohamed, 630
F.3d at 6); see also Arizona v. Johnson, 555 U.S. 323, 326-27
(2009) ("[T]o proceed from a stop to a frisk, the police officer
must reasonably suspect that the person stopped is armed and
dangerous.").
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Here the facts demonstrate that Officer Selfridge acted
reasonably out of a concern for his and the other officers' safety
in initiating the frisk. The officers were responding to a report
of a man beating a woman in the street. When an officer has a
reasonable suspicion that a crime of violence has occurred, "the
same information that will support an investigatory stop will
without more support a frisk." United States v. Scott, 270 F.3d
30, 41 (1st Cir. 2001) (emphasis added); see also United States v.
Sanchez, 519 F.3d 1208, 1211, 1216 (10th Cir. 2008) (holding that
police officers reasonably suspected occupant of car might be armed
and dangerous based in part on witness report that occupant had
just punched a woman in the face). The fact that Mouscardy was
suspected to have committed a violent crime is therefore highly
relevant in our determination of whether Officer Selfridge's
suspicions were reasonable.
Mouscardy's conduct and disposition during the stop also
support a finding that the frisk was justified. As discussed
above, Mouscardy repeatedly refused to identify himself, see United
States v. Campbell, 549 F.3d 364, 372 (6th Cir. 2008) (holding that
passenger's failure to provide identification, "possibly to conceal
his identity," was factor that could be considered in determining
whether pat-down during Terry stop was appropriate), and refused to
remove his hand from his pocket despite several requests by Officer
Selfridge, see United States v. Dubose, 579 F.3d 117, 122 (1st Cir.
-15-
2009) (suspect's refusal to remove his hand from his pocket was
factor supporting officer's reasonable suspicion that suspect was
armed and dangerous); United States v. Soares, 521 F.3d 117, 121
(1st Cir. 2008) (suspect's refusal to heed officer's orders to keep
his hands visible contributed to officer's reasonable suspicion).1
Additionally, as the stop progressed, Mouscardy became agitated and
nervous, moving around and "eye-balling" the area. Although
nervous behavior alone is not sufficient to establish the
reasonable suspicion necessary for a pat-frisk, see United States
v. McKoy, 428 F.3d 38, 41 (1st Cir. 2005); see also United States
v. Spinner, 475 F.3d 356, 360 (D.C. Cir. 2007) ("[T]he suspicion
that someone is armed . . . must be based upon something more than
his mere nervousness. A person stopped by the police is entitled
to be nervous without thereby suggesting he is armed and dangerous
. . . ."), such behavior is a relevant factor to be considered
along with others in assessing the totality of the circumstances,
see United States v. Chaney, 584 F.3d 20, 27 (1st Cir. 2009).2
1
Indeed, some circuits have held that a suspect's refusal to
remove his hand from his pocket during a valid Terry stop is alone
sufficient to justify a protective frisk. See United States v.
Cornelius, 391 F.3d 965, 968 (8th Cir. 2004) (frisk justified where
suspect placed his hand in his jacket pocket then refused to remove
it); United States v. Harris, 313 F.3d 1228, 1236 (10th Cir. 2002)
("When Defendant refused to remove his hands [from his pockets],
[the officer] was reasonably justified in believing that Defendant
might be armed and dangerous.").
2
As well as providing support for Officer Selfridge's
decision to perform a pat-frisk, Mouscardy's nervous, agitated
behavior supported Officer Selfridge's initial requests that
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Accordingly, we conclude that, in light of the totality
of the circumstances, Officer Selfridge had a reasonable suspicion
that Mouscardy might be armed and dangerous, thus justifying his
initiation of the frisk.
III.
Mouscardy maintains that his Sixth Amendment rights were
violated when the district court sentenced him as an armed career
criminal because the predicate offenses on which the district court
relied are not categorically violent felonies under the Armed
Career Criminal Act ("ACCA"), and because the government failed to
present documents that support a finding that his predicate
offenses were in fact violent. We review de novo whether the
convictions upon which the district court relied categorically
qualify as ACCA predicate offenses. Hart, 674 F.3d at 40.
To be eligible for an ACCA enhancement, Mouscardy "had to
have been convicted of three prior violent felonies, serious drug
offenses, or a combination thereof." Id.; see 18 U.S.C.
§ 924(e)(1). A "violent felony" is defined by the statute as
any crime punishable by imprisonment for a
term exceeding one year . . . that --
(i) has as an element the use,
attempted use, or threatened use of physical
force against the person of another; or
Mouscardy remove his hand from his pocket. Considering the
totality of the circumstances, Officer Selfridge's requests were
reasonable and did not impermissibly expand the scope of the stop.
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(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to
another[.]
18 U.S.C. § 924(e)(2)(B). We have referred to the first clause as
the "force clause," and the portion of the second clause following
the enumerated offenses as the "residual clause." Hart, 674 F.3d
at 41.
"Under either clause, we take a categorical approach in
determining whether a conviction qualifies as an ACCA predicate
offense, meaning we 'consider only the offense's legal definition,
forgoing any inquiry into how the defendant may have committed the
offense.'" Id. (quoting United States v. Holloway, 630 F.3d 252,
256 (1st Cir. 2011)). In determining the offense's legal
definition, state court constructions of the applicable state
statutes control. Id. If the statutes "subsume[] only ACCA
predicate offenses," we need go no further. Id. (emphasis added).
However, when a defendant is convicted under a statute that covers
multiple offenses, "a court may look to a restricted set of
documents (e.g., indictment, plea colloquy, jury instructions) to
ascertain which of the multiple offenses served as the offense of
conviction." Holloway, 630 F.3d at 257. These documents are known
as "Shepard documents." Hart, 674 F.3d at 41 (citing Shepard v.
United States, 544 U.S. 13, 26 (2005)). "If the Shepard documents
prove inconclusive, such that the court cannot ascertain the
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offense of conviction, the conviction cannot qualify as an ACCA
predicate." Id.
The presentence report classified seven of Mouscardy's
prior convictions as ACCA predicates: (1) a 1997 conviction for
possession of crack cocaine with intent to distribute and resisting
arrest; (2) a 1999 conviction for assault and battery with a
dangerous weapon ("ABDW"); (3) a 2000 conviction for assault and
battery on a police officer ("ABPO") and resisting arrest; (4) a
2002 conviction for assault with a dangerous weapon (knife)
("ADW"); (5) a 2002 conviction for ABPO and ABDW; (6) a 2003
conviction for ABPO, ADW (knife), and resisting arrest; (7) a 2005
conviction for distribution of crack cocaine.3 Mouscardy argues
that, because the Massachusetts crime of ABDW can be committed
recklessly, it is not a categorically violent felony under the
ACCA. He also urges us to reconsider our prior decisions holding
that ABPO and resisting arrest are categorically violent felonies
under the ACCA. Mouscardy relies generally on our opinion in
Holloway, where we held that the Massachusetts crime of simple
assault and battery was not a categorically violent felony because
it can be committed recklessly. 630 F.3d at 262.
3
At sentencing, there was some dispute as to whether
Mouscardy's 2005 conviction for distribution of crack cocaine was
final. The district court declined to consider that conviction in
determining whether Mouscardy qualified for the ACCA enhancement,
concluding that "[i]t's irrelevant because of the huge numbers of
assault and battery with a dangerous weapon [convictions] and the
assault and batteries on a police officer."
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The law of the circuit doctrine forecloses Mouscardy's
challenge. Pursuant to that doctrine, we are "bound by a prior
panel decision, absent any intervening authority." United States
v. Grupee, 682 F.3d 143, 149 (1st Cir. 2012). In United States v.
Hart -- a case decided after Holloway -- we held that a
Massachusetts conviction for ABDW categorically applies as a
predicate offense under 18 U.S.C. § 924(e)(2)(B)(ii). 674 F.3d at
44, cert. denied, 133 S. Ct. 228 (2012). In United States v.
Dancy, another case decided post-Holloway, we held that the
Massachusetts crime of ABPO is categorically a violent felony under
the ACCA. 640 F.3d at 468-70. Because Mouscardy has failed to
identify any supervening authority that would cast doubt on the
validity of Hart or Dancy, his challenges to the designation of his
ABDW and ABPO convictions as valid ACCA predicates are barred by
the law of the circuit doctrine.
Considering only his ABDW and ABPO convictions, Mouscardy
has four qualifying predicates, one more than is required for an
ACCA enhancement. We therefore conclude that the district court
did not err in sentencing Mouscardy as an armed career criminal.4
4
Mouscardy devotes a short paragraph in his brief to the
argument that the residual clause of the Armed Career Criminal Act
should be considered void for vagueness. This argument is plainly
foreclosed by Supreme Court precedent and our own. See Sykes v.
United States, 131 S. Ct. 2267, 2277 (2011); James v. United
States, 550 U.S. 192, 210 n.6 (2007); United States v. Hart, 674
F.3d 33, 41 n.3 (1st Cir. 2012).
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IV.
For the foregoing reasons, we affirm Mouscardy's
conviction and sentence.
So ordered.
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