United States v. Tavares

United States Court of Appeals
For the First Circuit
No. 14-2319
UNITED STATES OF AMERICA,
Appellee,
v.
VERISSIMO TAVARES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Thompson, Selya and Kayatta,
Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, with
whom Federal Public Defender Office was on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
December 1, 2016
KAYATTA, Circuit Judge. Convicted of being a felon in
possession of a firearm, Verissimo Tavares appeals both the
conviction and his sentence. He claims that the district court
erred in admitting improper and prejudicial expert testimony
concerning the absence of fingerprints on the gun that the jury
found Tavares to have possessed. He also claims that the district
court erred in its guideline sentencing calculations by treating
his convictions for resisting arrest and assault and battery with
a dangerous weapon as "crime[s] of violence." For the following
reasons, we affirm the conviction but remand for reconsideration
of the sentence.
I. BACKGROUND
Before dawn on August 4, 2013, two Boston police officers
responded to a dispatch about a disturbance in a Boston
neighborhood. As the officers dispersed the crowd, they heard
gunshots emanating from the next street; when they went to
investigate the source, they caught sight of a figure, subsequently
revealed to be Tavares, riding away on a motor scooter. A chase
ensued.
One of the pursuing police officers testified that he
saw an object in Tavares's hands. Another testified that he saw
Tavares throw an object into the yard of a nearby dwelling at 71
Clarkson Street. The chase ended when the police took Tavares
into custody. Searching for the hurled object, one of the officers
- 2 -
discovered a silver handgun in the yard of 71 Clarkson Street.
Detectives were summoned to examine the firearm. They determined
that the handgun was a semiautomatic firearm, loaded with five
rounds of ammunition.
A federal grand jury charged Tavares as a felon in
possession of a firearm. See 18 U.S.C. § 922(g)(1). He maintained
his innocence, and the case went to trial. During the government's
case in chief, several police officers testified about the chase,
the arrest, and the retrieval of the firearm. The government also
presented the testimony of Richard Auclair, a fingerprint expert
who held the position of Criminalist II in the Latent Print Unit
(the Unit) at the Boston Police Department. The defense rested
without presenting any evidence. The jury found Tavares guilty.
In anticipation of sentencing, the probation department
prepared a presentence investigation report (the PSR). The Report
recommended that the district court apply a four-level career
offender enhancement under the sentencing guidelines, see U.S.S.G.
§ 2K2.1(a)(2), based on a conclusion that Tavares's prior
Massachusetts convictions for resisting arrest, see Mass. Gen.
Laws ch. 268, § 32B(a), and for assault and battery with a
dangerous weapon (ABDW), see id. ch. 265, § 15A(b), were both
"crime[s] of violence." Tavares objected to the classification of
his putative predicate offenses as crimes of violence under the
residual clause of the sentencing guidelines' career offender
- 3 -
provision. See U.S.S.G. § 4B1.2(a)(2) (Nov. 2014 ed.); id. at
§ 2K2.1(a)(2), cmt. n.1. Relying on our decisions in United States
v. Glover, 558 F.3d 71, 80–81 (1st Cir. 2009), and United States
v. Almenas, 553 F.3d 27, 33–34 (1st Cir. 2009), the district court
overruled this objection. In so doing, the district court deemed
both prior convictions to be for crimes of violence under the
residual clause. The career offender enhancement, coupled with
other adjustments not now in issue, yielded an advisory guideline
range of 120-150 months, necessarily capped at 120 months by the
ten year maximum applicable to the statute of conviction. See 18
U.S.C. § 924(a)(2). Using the advisory guideline range as a "place
to start" and mulling the factors enumerated in 18 U.S.C.
§ 3553(a), the court imposed an 84-month prison term. This timely
appeal followed.
II. ANALYSIS
Challenging his conviction, Tavares argues that the
district court erred, to his prejudice, by admitting over his
objection a portion of Auclair's expert testimony. Alternatively,
he argues that the district court erred in calculating his
guideline sentencing range by counting his prior convictions as
convictions for crimes of violence. We address each argument in
turn.
- 4 -
A. Expert Testimony
The principal issue at trial was whether Tavares had
possessed the gun that the police found in the yard at 71 Clarkson
Street. Mainly through cross-examination and argument, Tavares
sought to show that the government had not proved his possession
of the weapon beyond a reasonable doubt. To bolster this claim,
he suggested (among other things) that the police officers'
testimony about his involvement with the weapon was inconsistent;
that the weapon, when found, did not bear his fingerprints and,
thus, had not been in his hands; and that the police had rushed to
judgment. The government countered, in part, by presenting
Auclair's testimony.
After being duly qualified as a criminalist, Auclair
testified about the significance of the fact that the examination
of the gun by the police laboratory revealed only a very partial
print that was itself insufficient to implicate or exclude Tavares.
Auclair delineated the factors that affect recovery of usable
prints (including the quality of ridge skin, the texture of the
surface involved, the nature of print deposition, the treatment of
the surface after print deposition, and environmental conditions).1
After explaining the procedures used by the Unit to preserve
1 In the context of fingerprint examination, "deposition" is the
act of depositing something (such as sand, snow, or mud) on a
surface, especially over a period of time.
- 5 -
prints, Auclair testified that the firearm removed from the yard
at 71 Clarkson Street did not reveal any usable prints.
So far, so good. During direct examination, however,
the prosecutor asked Auclair about the percentage of cases in which
usable prints were recovered from examined firearms, that is, what
percentage of examined guns were found to contain fingerprints
with sufficient ridge detail to allow the authorities to make an
identification. Over the defendant's objection, the court allowed
Auclair to opine, based primarily on the Unit's experience over a
period of nearly nine years, that usable prints had been recovered
from approximately 16% of firearms examined. Under cross-
examination, Auclair explained that his opinion derived in part
from a compilation of the Unit's fingerprint analyses completed by
an intern: we say "completed" because the Unit regularly kept
such data on a series of spreadsheets, and the intern had simply
updated those data and tabulated them. Auclair could not say,
however, either what procedures were used in the process of
compilation or what oversight of the intern was provided by Unit
staff. He could opine, however, that the 16% figure was generally
consistent with his own personal experience in examining hundreds
of guns. After cross-examination, Tavares moved to strike
Auclair's opinion. The court denied his motion.
On appeal, Tavares challenges the court's rulings
admitting and refusing to strike this portion of Auclair's
- 6 -
testimony. Specifically, Tavares argues, first, that the
testimony lacked a proper foundation; and second, that the
testimony was both not relevant and unfairly prejudicial.
We review a trial court's decision to admit or exclude
evidence for abuse of discretion. See United States v. Pires, 642
F.3d 1, 10 (1st Cir. 2011); United States v. Stierhoff, 549 F.3d
19, 27 (1st Cir. 2008). In carrying out this task, we afford
"broad deference to the determination made by the district court
as to the reliability and relevance of expert testimony."
Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir.
2006). Absent a material error of law, we will not upset such a
determination unless it appears that the district court "committed
a meaningful error in judgment." Ruiz-Troche v. Pepsi Cola of
P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998) (quoting
Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)).
Against this backdrop, we turn first to Tavares's
argument that the challenged testimony lacked a sufficient
foundation. The touchstone for the admission of expert testimony
in federal court litigation is Federal Rule of Evidence 702. The
rule provides in relevant part that, as a precursor to giving
expert testimony, an expert must be "qualified . . . by knowledge,
skill, experience, training, or education" and must possess
specialized knowledge that "will help the trier of fact to
understand the evidence or to determine a fact in issue." Fed. R.
- 7 -
Evid. 702. The rule further demands that such opinion testimony
rest on "sufficient facts or data." Id.
These requirements obligate a trial court to act as a
gatekeeper in order to ensure, as a condition of admissibility,
that proffered expert testimony rests on a sufficiently
trustworthy foundation. See Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 597 (1993). Where, as here, the factual basis of an
expert's testimony is called into question, the district court
must determine whether the testimony has "a reliable basis" in
light of the knowledge and experience of the relevant discipline.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999) (quoting
Daubert, 509 U.S. at 592). We, in turn, review such determinations
for abuse of discretion. See id. at 142.
Tavares does not question Auclair's credentials as a
fingerprint expert. Nor could he: Auclair earned a master's
degree in forensics, underwent additional training upon joining
the Unit, worked in the field for several years, and passed a
series of annual proficiency tests.
Expert testimony, however, can for the most part be no
better than the information provided to the expert. That principle
is summed up in the familiar phrase "garbage in, garbage out."
Tavares says that, whatever Auclair's qualifications, he lacked a
sufficiently reliable basis for offering an opinion about the rate
at which usable fingerprints appear on examined firearms.
- 8 -
This aspect of Tavares's challenge focuses on the
alleged inadequacies of the compilation of data upon which Auclair
drew in reaching his opinion about the 16% rate of usable prints
recovered from examined firearms. The last step in that
compilation was taken by an intern (not working under Auclair's
supervision), and Auclair did not profess to know what procedures
the intern had followed in compiling and tabulating the data.
Although Auclair was not aware of the specific
procedures used to compile and tabulate the data that went into
the intern's report, he made clear that the report was neither an
ad hoc nor an informal production. Rather, the report was the
latest iteration in ordinary course of a type of statistical
compilation that the Unit had periodically produced on earlier
occasions. These past reports were kept by the Unit in the
ordinary course of its operations and were based on data that the
Unit had collected and maintained in spreadsheets over a number of
years. These spreadsheets had been prepared by Unit staff
(including individuals with responsibility for technical
information within the Unit). The district court did not abuse
its discretion in finding that Auclair, given his position and
expertise, was entitled to rely on these spreadsheets. See United
States v. Corey, 207 F.3d 84, 89 (1st Cir. 2000) (approving
expert's reliance on "materials maintained at ATF 'research
libraries,' which contained information on approximately five
- 9 -
thousand different firearms"); cf. United States v. Smith, 566
F.3d 410, 412 (4th Cir. 2009) (upholding admission of ATF agent's
testimony that relied on "an ATF computerized database that had
been compiled 'over many, many years as agents have done this
practice'" in response to a challenge under the best evidence
rule); Clausen v. M/V New Carissa, 339 F.3d 1049, 1059-61 (9th
Cir. 2003) (upholding expert testimony that relied on history and
reports created by others, even where there was no supported peer-
reviewed literature). The intern's report merely updated these
spreadsheets and tabulated the results, and it was within the
court's discretion to find that Auclair could reasonably rely on
that report as well.
What is more, Auclair testified that the percentage
identified in the report for the Unit as a whole was "generally
consistent" with his own long experience and that the scientific
publications he had consulted did not affect this assessment. This
testimony provided a basis for concluding that the department's
report was materially reliable. It also provided an independent
basis for the basic point being made: it was by no means unusual
to find no usable prints on a gun. On that point, it could have
hardly made any difference whether the percentage of guns found to
have usable prints was exactly 16% or "generally" 16%. All in
all, we think that it was within the district court's discretion
- 10 -
to accept Auclair's determination that the updated Unit statistics
were reliable.
We likewise reject the defendant's related argument that
Auclair's testimony lacked a proper foundation because he had not
performed or supervised the work that produced the compilation.
An expert may rely on information not itself admitted into evidence
when forming an opinion. See Jones ex rel. United States v. Mass.
Gen. Hosp., 780 F.3d 479, 494 n.8 (1st Cir. 2015). So, too, an
expert may rely on information that is not independently
admissible. See Corey, 207 F.3d at 89. Nor is there any
requirement that the information relied on by an expert must have
been compiled by him or under his supervision. See Crowe v.
Marchand, 506 F.3d 13, 18 (1st Cir. 2007). And though "the
entirety of [an expert's] testimony cannot be the mere repetition
of 'the out-of-court statements of others,'" United States v. Luna,
649 F.3d 91, 105 (1st Cir. 2011) (quoting United States v. Cormier,
468 F.3d 63, 73 (1st Cir. 2006)), that was not the case here:
Auclair's reliance on the compilation represented only a small
fraction of his testimony on the subject of unusable prints and
was corroborated by his familiarity with past calculations by the
Unit and his own experience.
Tavares's embrace of our decision in United States v.
Giambro, 544 F.3d 26 (1st Cir. 2008), does not advance his cause.
There, the trial court found that the basis for the expert's
- 11 -
testimony was "purely anecdotal," and was otherwise unreliable.
Id. at 33. Our affirmance of that finding as not an abuse of
discretion simply does not mean that it was an abuse of discretion
to admit Auclair's testimony that rested in its material force on
several independent, non-anecdotal grounds.
To say more on this point would be to paint the lily.
In the circumstances here, we think that any question about the
factual underpinnings of Auclair's opinion goes to its weight, not
to its admissibility. See Milward v. Acuity Specialty Prods. Grp.,
Inc., 639 F.3d 11, 22 (1st Cir. 2011). So, too, deciding whether
the data were of a type that Auclair could reasonably rely upon
under Federal Rule of Civil Procedure 703 was well within the trial
court's discretion. See Corey, 207 F.3d at 92.
The defendant's challenge to the relevance of Auclair's
testimony is equally unavailing. "Evidence is relevant if: (a)
it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence
in determining the action." Fed. R. Evid. 401. In this instance,
we think that evidence reflecting the overall rate at which usable
fingerprints are recovered from firearms was plainly relevant and
likely helpful to the jury in determining what significance, if
any, should be accorded to the absence of fingerprints on the
firearm found at 71 Clarkson Street. Surely, such evidence had a
tendency to make a fact of consequence more probable: it suggested
- 12 -
that the absence of usable prints did not mean, ipso facto, that
the weapon was never in the defendant's hands, or that the police
work was shoddy. See, e.g., United States v. Burdeau, 168 F.3d
352, 356–57 (9th Cir. 1999). Seen in this light, the evidence
"assisted the jury in understanding that . . . certain objects are
not particularly conducive to finding prints." United States v.
Glover, 479 F.3d 511, 518 (7th Cir. 2007). Absent Auclair's
testimony, "the jury may not have understood how [the defendant]
could have possessed the weapon without leaving prints." Id.
In an effort to deflect the force of this reasoning,
Tavares points out that the 16% figure did not distinguish between
firearms that were subjected to the so-called "fuming" process
before they were sent to the lab (like the firearm in this case)
and those that were not.2 This omission, Tavares submits, rendered
the testimony too general to be relevant.
This argument is futile. There is simply no requirement
that statistics must in all instances separately account for every
potentially significant variable in order even to be relevant.
See Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 468-
69 (8th Cir. 2004). That is true of the "fuming" variable here.
2 As explained by Auclair, "fuming" is the process in which a
firearm is placed in a chamber filled with a heated glue substance.
The glue then adheres to the moisture in the fingerprint, hardens
the moisture, and turns the fingerprint white, rendering the print
visible and less likely to be rubbed away.
- 13 -
The defendant had the right--which he exercised--to cross-examine
Auclair about the chances that the recovery percentage might differ
materially in cases in which fuming was performed earlier. No
more was exigible: after all, district courts have "broad latitude
. . . with respect to the determination of the admissibility of
expert testimony," Crowe, 506 F.3d at 18--and the limits of that
broad discretion were not exceeded here.
Tavares has a fallback position. He contends that the
challenged testimony, even if relevant, ought to have been excluded
under Federal Rule of Evidence 403. Rule 403 provides, in
pertinent part, that "[t]he court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of .
. . unfair prejudice, confusing the issues, misleading the jury,"
or the like. Fed. R. Evid. 403. The rule is addressed to the
district court's informed discretion and its due administration
recognizes that "[t]his balancing is best performed by the trial
judge, who has an intimate familiarity with the ebb and flow of
the case and with its nuances." United States v. Raymond, 697
F.3d 32, 38 (1st Cir. 2012). "[O]nly rarely--and in
extraordinarily compelling circumstances--will we, from the vista
of a cold appellate record, reverse a district court's on-the-spot
judgment concerning the relative weighing of probative value and
unfair effect." Id. (quoting Freeman v. Package Mach. Co., 865
F.2d 1331, 1340 (1st Cir. 1988)).
- 14 -
Under this generous prescription, the district court's
admission of the challenged testimony cannot be faulted. As we
have already explained, the evidence was plainly relevant.
Tavares, in turn, points to no prejudice that was so substantial
as to compel exclusion. To be sure, Auclair's opinion was
prejudicial in the sense that it aided the government's theory of
the case and diminished the force of Tavares's theory of the case.
But Rule 403 guards only against unfair prejudice, see United
States v. Benedetti, 433 F.3d 111, 118 (1st Cir. 2005), and the
probative value of this evidence, though modest, was not
substantially outweighed by any unfairly prejudicial effect.
Hence, there was no abuse of discretion in admitting that evidence.
B. Classification of Prior Offenses as "Crimes of Violence"
Under § 2K2.1(a) of the United States Sentencing
Guidelines, Tavares's prior criminal record played a substantial
role in setting his base offense level and Guidelines sentencing
range. Pursuant to § 2K2.1(a)(4), his base offense level increased
from 12 to 20, and--in Tavares's case--his sentencing range
increased from 37–46 months to 84–105 months, if he committed the
subject offense "subsequent to sustaining one felony conviction of
either a crime of violence or a controlled substance offense."
U.S.S.G. § 2K2.1(a)(4)(A). Under § 2K2.1(a)(2), his base offense
level increased by an additional four levels, and--in Tavares's
case--his sentencing range increased from 84–105 months to 120–
- 15 -
150 months, if he committed the subject offense subsequent to
sustaining two such convictions.3
Over Tavares's objection, the district court found that
both of these enhancements were proper and assigned Tavares a base
offense level of 24 under these provisions. The court also adopted
the PSR's two-level enhancement because the firearm had been
stolen, U.S.S.G. § 2K2.1(b)(4)(A), resulting in a total offense
level of 26. In adopting the base offense level of 24, the district
court relied on the fact that Tavares had previously been convicted
of two offenses in Massachusetts state court: Resisting Arrest
and Assault and Battery with a Dangerous Weapon ("ABDW"). The
parties agree that neither offense is a controlled substance
offense. We must therefore determine whether the district court
properly categorized each of these state court offenses as a "crime
of violence" under the Guidelines. See U.S.S.G. § 4B1.2(a); see
also id. § 2K2.1, cmt. n.1 (adopting definition of "crime of
violence" in § 4B1.2(a)).
As relevant here, at the time of Tavares's sentencing,
the term "crime of violence" was defined as
any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that--
3 Effectively, the actual sentencing range can only increase to
120 months because his conviction under 18 U.S.C. § 922(g)(1)
carries a maximum term of imprisonment of ten years.
- 16 -
(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.
U.S.S.G. § 4B1.2(a) (as amended Nov. 1, 2009).4 Neither party
maintains that Tavares's Resisting Arrest and ABDW offenses fall
within any of the enumerated crimes of subsection (2). The parties
further agree that Johnson v. United States (Johnson II), 135
S. Ct. 2551 (2015), should lead us to deem unconstitutionally vague
the final clause of subsection (2) (commonly referred to as the
"residual" clause). See id. at 2560, 2563; see also, e.g., United
States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (collecting
cases applying Johnson II to § 4B1.2(a)); United States v.
Calabretta, 831 F.3d 128, 137–38 (3d Cir. 2016) (reaching same
conclusion). But see Beckles v. United States, 616 F. App'x 415,
415–16 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016)
(holding Johnson II does not apply to crimes listed as crimes of
violence in the commentary to § 4B1.2); United States v. Matchett,
802 F.3d 1185, 1196 (11th Cir. 2015) (holding that the sentencing
guidelines cannot be unconstitutionally vague). We therefore
4 Section 4B1.2(a)(2) was subsequently amended on July 13, 2016 to
alter subsection (2). U.S.S.G. § 4B1.2(a)(2) (as amended July 13,
2016).
- 17 -
proceed to analyze whether the prior offenses at issue qualify as
crimes of violence under subsection (1) of § 4B1.2(a), commonly
referred to as the "force" clause.
1. Resisting Arrest
The Massachusetts offense of Resisting Arrest is defined
as
knowingly prevent[ing] or attempt[ing] to
prevent a police officer, acting under color
of his official authority, from effecting an
arrest of the actor or another, by:
(1) using or threatening to use physical
force or violence against the police
officer or another; or
(2) using any other means which creates a
substantial risk of causing bodily injury
to such police officer or another.
Mass. Gen. Laws ch. 268, § 32B(a).5
The parties agree that the version of this offense set
forth in subsection (2) can no longer be considered to be a "crime
of violence" under § 4B1.2(a)(2) of the Guidelines in the wake of
Johnson II. The government argues, instead, that the version of
Resisting Arrest described in subsection (1) is a crime of violence
under the force clause according to our existing case law, United
States v. Almenas, 553 F.3d 27, 32–33 (1st Cir. 2009), and that
subsection (2) is divisible from subsection (1) within the meaning
5 Tavares was convicted of resisting arrest in 2008. The statutory
language has not changed since then.
- 18 -
of Descamps v. United States, 133 S. Ct. 2276, 2284 (2013). We
should therefore remand this case, says the government, so that
the district court may consider whether documents that the
government supplies as permitted by Shepard v. United States, 544
U.S. 13, 26 (2005)6 establish that the version of Resisting Arrest
for which Tavares stood convicted was the subsection (1) version
("using or threatening to use physical force or violence against
the police officer or another," Mass. Gen. Laws ch. 268,
§ 32B(a)(1)), rather than subsection (2).
Tavares does not dispute that the two versions of the
Massachusetts Resisting Arrest offense set forth in
subsections (1) and (2) are divisible under Descamps. Nor does
Tavares disagree that remand for consideration of any Shepard
documents would be appropriate if the subsection (1) version of
the offense is a crime of violence. Instead, Tavares argues that
the subsection (1) version of the Resisting Arrest offense itself
fails to qualify categorically as a crime of violence.
In making this argument, Tavares correctly concedes that
we have previously held precisely to the contrary; that is, that
the subsection (1) version of the Massachusetts Resisting Arrest
offense is a crime of violence under the force clause. See United
6 Shepard documents include documents "from the convicting court,
such as charging documents, plea agreements, plea colloquies, and
jury instructions." United States v. Serrano-Mercado, 784 F.3d
838, 843 (1st Cir. 2015).
- 19 -
States v. Weekes, 611 F.3d 68, 72–73 (1st Cir. 2010), cert. denied
564 U.S. 1021 (2011); Almenas, 553 F.3d at 33. Tavares
nevertheless points out that these prior opinions did not consider
the impact of Johnson v. United States (Johnson I), 559 U.S. 133
(2010), which held that the term "physical force" under the force
clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e)(2)(B)(i), requires "violent force," meaning "force
capable of causing physical pain or injury to another person."
Johnson I, 559 U.S. at 140. That holding, the parties do not
dispute, also applies to the identical phrase at issue here under
§ 4B1.2 of the Guidelines. See, e.g., United States v. Castro-
Vazquez, 802 F.3d 28, 37–38 (1st Cir. 2015); United States v.
Carrigan, 724 F.3d 39, 50 (1st Cir. 2013). Because subsection (1)
requires "physical force or violence," reasons Tavares, we should
hold that it does not necessarily require "violent force," and
hence the offense described in subsection (1) fails to qualify as
a crime of violence under Johnson I.
Although we are generally bound by prior panel decisions
on point, we may depart from circuit precedent if the prior holding
is "contradicted by controlling authority,
subsequently announced (say, a decision of the
authoring court en banc, a Supreme Court
opinion directly on point, or a legislative
overruling)," or in "those relatively rare
instances in which authority that postdates
the original decision, although not directly
controlling, nevertheless offers a sound
reason for believing that the former panel, in
- 20 -
light of fresh developments, would change its
collective mind."
United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011) (citations
omitted). It is also true that we decided Almenas before Johnson
I construed "physical force" as used in the ACCA to require
"violent force." Almenas, however, did not rest on the assumption
that physical force meant something other than violent force. To
the contrary, in addressing the defendant's argument that some
conduct that fell under both subsections of the Resisting Arrest
statute was non-violent, we described that conduct (stiffening
one's arm to avoid being handcuffed) as something that could not
be characterized as "non-violent." Almenas, 553 F.3d at 35. No
controlling authority issued after Almenas and Weekes contradicts
our holdings in those cases. So Tavares must argue that post-
dated authority that is not directly controlling "nevertheless
offers a sound reason" for concluding that we would have reached
a different result had we known what we know now. Pires, 642 F.3d
at 9.
Tavares makes a plausible point that one might read
"physical force or violence" in the Resisting Arrest statute as
suggesting that "physical force" means something other than
violence. That point, though, was as valid when Almenas was
decided as it is today. Moreover, Johnson I itself construed the
term "physical force" as used in the ACCA to mean "violent force."
We also see nothing in the Massachusetts case law to which Tavares
- 21 -
points indicating that the element of "physical force or violence"
is satisfied by a degree of physical force that would not equal or
exceed the ACCA's "physical force." In Commonwealth v. Katykhin,
794 N.E.2d 1291 (Mass. App. Ct. 2003), the defendant refused to
get into a police cruiser, stood "rigid, upright, almost like a
plank of wood," and "began to pull away [from the police officer],
starting a tug of war." Id. at 1292. In Commonwealth v. Joyce,
998 N.E.2d 1038 (Mass. App. Ct. 2013), the defendant was "shouting
and struggling to pull his arms forward to maintain a fighting
stance with [a third party]" while an officer placed him under
arrest. Id. at 1044. He then refused to move his feet as two
officers tried to bring him to the police cruiser "pushing
backwards and straining to turn so that he could shout at
bystanders." Id. at 1041, 1044. In Commonwealth v. Maylott, 841
N.E.2d 717 (Mass. App. Ct. 2006), the defendant was "moving his
arms, flailing as he was yelling and screaming" when the officers
tried to handcuff him. Id. at 718. When one officer took hold of
his right hand, he stiffened his arm and refused to turn around or
put his hands behind his back. Id.
It certainly seems reasonable to view the foregoing
conduct as involving in each instance a use or threatened use of
force sufficient to cause pain or injury so as to qualify under
the force clause as construed in Johnson I. Whether we would so
conclude in the absence of binding precedent, we need not decide.
- 22 -
Rather, we need only decide--and do decide--that this appeal does
not present one of those rare occasions in which we might set aside
controlling circuit precedent.
That leaves only the question whether the government
should have the opportunity on remand to supplement the record
with Shepard documents, assuming such documents exist and would
pin Tavares's conviction firmly under Massachusetts Resisting
Arrest subsection (1), rather than (2). Tavares does not argue
that the government should not have such an opportunity. Here,
importantly, the record was sufficient to sustain the government's
position at the time of sentencing without any need to present
Shepard documents, and we remand for reconsideration of that
sentence only because the controlling law on the residual clause
thereafter changed. Under such circumstances, supplementation of
the record for sentencing on remand is appropriate.
2. ABDW
Chapter 265, § 15A(b) of Massachusetts General Laws sets
forth the maximum term of incarceration and fine that may be
imposed on a person "[w]ho[] commits an assault and battery upon
another by means of a dangerous weapon." Mass. Gen. Laws ch. 265,
§ 15A(b).7 The substantive definition of ABDW, in turn, is supplied
by case law applying the crime's common law definition. See
7 Tavares was convicted of ABDW in 2009. The relevant portion of
the statutory language has not changed since then.
- 23 -
Commonwealth v. Porro, 939 N.E.2d 1157, 1162 (Mass. 2010);
Commonwealth v. Burno, 487 N.E.2d 1366, 1368-69 (Mass. 1986). In
Burno, the Supreme Judicial Court of Massachusetts ("SJC") applied
the common law definition of simple assault and battery to describe
"two separate aspects to the crime" of ABDW. 487 N.E.2d at 1368.
These "separate aspects" both require the use of a dangerous weapon
and are described as follows:
[(1)] "the intentional and unjustified use of
force upon the person of another,
however slight," or
[(2)] the intentional commission of a wanton
or reckless act . . . causing physical
or bodily injury to another.
Id. at 1368–69 (citations omitted). For ease of reference given
the numerous sections and subsections described in the opinion, we
refer to these two forms of the offense as Massachusetts ABDW
sections (1) and (2).
Tavares makes two principal arguments in challenging the
district court's classification of this offense as a "crime of
violence" under § 4B1.2(a)(1) of the Guidelines. Relying on this
court's opinion in United States v. Fish, 758 F.3d 1 (1st Cir.
2014), he argues that ABDW under Massachusetts law is categorically
not a "crime of violence" under § 4B1.2(a)(1) because (1)
Massachusetts ABDW section (1)--"the intentional and unjustified
use of force upon the person of another, however slight"--may be
committed without employing the necessary "violent force" required
- 24 -
by Johnson I, and (2) Massachusetts ABDW section (2)--"the
intentional commission of a wanton or reckless act . . . causing
physical or bodily injury to another"--may be committed with a
reckless, as opposed to an intentional, mens rea. Tavares also
argues that, if he is correct that even one of these versions of
ABDW does not qualify as a crime of violence, he must then prevail
because Massachusetts ABDW is not elementally divisible into
multiple offenses and thus is not subject to the modified
categorical approach aimed at determining which version of the
offense was the version for which he was previously convicted.
See generally Descamps, 133 S. Ct. at 2281-82; United States v.
Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015), petition for
cert. docketed, No. 16-0237 (Aug. 24, 2016); accord Mathis v.
United States, 136 S. Ct. 2243, 2248–49 (2016).
In Fish, we did indeed observe that the government, "with
good reason," declined to argue that Massachusetts ABDW section
(1) qualifies as a crime of violence under the force clause of 18
U.S.C. § 16(a), which is substantially identical to the force
clause here, U.S.S.G. § 4B1.2(a)(1). Fish, 758 F.3d at 9. The
reason, we observed, was that "ABDW may be accomplished by a mere
'touching, however slight,'" id. (quoting United States v. Hart,
674 F.3d 33, 42 (1st Cir. 2012)), and therefore did not involve
the use of physical force, id.
- 25 -
Nevertheless, in United States v. Whindleton, 797 F.3d
105 (1st Cir. 2015), cert. dismissed, No. 15-9653, 2016 WL 3199031
(Aug. 19, 2016), and cert. denied, No. 16-5101, 2016 WL 3633306
(Oct. 3, 2016), the government advanced the argument it eschewed
in Fish, and we turned our focus from the ACCA's "use . . . of
physical force" to its "attempted . . . or threatened use of
physical force" criterion, finding that a mere touching with a
dangerous weapon constituted an attempted or threatened use of
physical force. Id. at 113–16; see also United States v. Hudson,
823 F.3d 11, 16 (1st Cir. 2016) (reaffirming Whindleton). We have
extended the holding in Whindleton from the force clause of the
ACCA to the force clause of U.S.S.G. § 4B1.2(a). See United States
v. Fields, 823 F.3d 20, 33–35 (1st Cir. 2016). Although Whindleton
was convicted of assault with a dangerous weapon ("ADW"), Mass.
Gen. Laws ch. 265, § 15B(b), rather than ABDW like Tavares, ADW is
a "lesser included offense" of ABDW section (1). See Porro, 939
N.E.2d at 1165–66; Commonwealth v. Appleby, 402 N.E.2d 1051, 1059
(Mass. 1980). Therefore, no more "force"--whether attempted,
threatened, or actually used--could be required for ADW than ABDW
section (1). See United States v. Maxwell, 823 F.3d 1057, 1061
(7th Cir. 2016) (relying on level of force required by lesser-
included offense to conclude that a prior state court conviction
qualified under force clause of § 4B1.2(a)), cert. denied, No. 16-
6072, 2016 WL 5357418 (Oct. 31, 2016). Thus, Whindleton's holding
- 26 -
means that ABDW section (1) qualifies as a crime of violence under
the ACCA. Whindleton, 797 F.3d at 113-16. No decision since
Whindleton calls that conclusion into question or suggests any
reason why that conclusion should not apply equally to U.S.S.G.
§ 4B1.2(a)(1). For this reason, and tracking our holding in
Whindleton rather than the government's concession in Fish, we
hold that Massachusetts ABDW section (1)--"the intentional and
unjustified use of force upon the person of another, however
slight"--constitutes a crime of violence under § 4B1.2(a)(1) of
the Guidelines. See Fields, 823 F.3d at 35 n.12 (not following as
dicta Fish's observation about Massachusetts ABDW section (1)).
That holding leaves two questions: Is Massachusetts
ABDW section (2)--"the intentional commission of a wanton or
reckless act . . . causing physical or bodily injury to another"
--also a crime of violence? If not, is Massachusetts' definition
of ABDW divisible? We address the divisibility question first.
Ultimately, we conclude that the statute is divisible and remand
the case to the district court to determine whether Tavares was
convicted under Massachusetts ABDW section (1) without deciding
whether Massachusetts ABDW section (2) is also a crime of violence.
In Fish, this court posited that if Massachusetts had
set forth the elements of each "aspect" of ABDW by statute, rather
than in case law, it would read as follows:
- 27 -
Assault and Battery with a Dangerous Weapon
is:
(1) The intentional and unjustified touching
of another by use of a dangerous weapon,
or,
(2) The intentional commission of a wanton or
reckless act [with a dangerous weapon]
causing more than transient or trifling
injury to another.
Fish, 758 F.3d at 15. This offense reads as a divisible statute,
one which "list[s] elements in the alternative, and thereby
define[s] multiple crimes." Mathis, 136 S. Ct. at 2249. One set
of elements requires a heightened mens rea--intentional conduct--
but only slight contact. Burno, 487 N.E.2d at 1368–69. The other
set requires merely reckless behavior but an injury that
"interfered with the health or comfort of the victim." Id. at
1370. Which set of elements a jury would have to find in order to
convict would depend upon which form of ABDW the government
advanced at trial.
Tavares, however, points us to decisions from the
state's intermediate appellate court--the Appeals Court of
Massachusetts--which hold that jurors need not be unanimous as to
the form of assault and battery of which it convicts a defendant.
See Commonwealth v. Mistretta, 995 N.E.2d 814, 815–16 (Mass. App.
Ct.) (per curiam), rev. denied, 996 N.E.2d 881 (Mass. 2013); see
also Commonwealth v. Frith, No. 15-P-0364, 2016 WL 3659906, at *2
- 28 -
(Mass. App. Ct. July 8, 2016) (unpublished opinion). In Mistretta,
the court found that the two forms of assault and battery "are
closely related subcategories of the same crime," and thus
"[s]pecific unanimity is not required, because they are not
'separate, distinct, and essentially unrelated ways in which the
same crime can be committed.'" 995 N.E.2d at 815–16 (quoting
Commonwealth v. Santos, 797 N.E.2d 1191, 1197 (Mass. 2003),
overruled on other grounds by Commonwealth v. Anderson, 963 N.E.2d
704, 718 (Mass. 2012)). Based on Mistretta, the 2016 version of
the Criminal Model Jury Instructions for Assault and Battery, while
laying out the elements for both "Intentional Assault and Battery"
and "Reckless Assault and Battery," instruct that "[n]o verdict
slip or specific unanimity instruction [is] required where both
intentional and reckless assault and battery are alleged."
Massachusetts Criminal Model Jury Instructions for Use in the
District Court, Instruction 6.140, at 6 n.1 (June 2016), available
at http://www.mass.gov/courts/docs/courts-and-
judges/courts/district-court/jury-instructions-criminal/6000-
9999/6140-assault-and-battery.pdf.8
8 We note, however, that the model jury instructions for ABDW still
state that "[i]f both the intentional and reckless theories of
culpability are submitted to the jury, the judge must provide the
jury with a verdict slip to indicate the theory or theories on
which the jury bases its verdict and is required, on request, to
instruct the jurors that they must agree unanimously on the theory
of culpability." Massachusetts Criminal Model Jury Instructions
for Use in the District Court, Instruction 6.300, at 6 (2009 ed.),
- 29 -
We are not bound by a decision of a state intermediate
appellate court, though such a decision "generally constitutes a
reliable piece of evidence" concerning a state-law question.
Noviello v. City of Boston, 398 F.3d 76, 91 (1st Cir. 2005).
Where, as here, the state's highest court--the SJC--"has not spoken
directly to an issue, [we] must make an informed prophecy as to
the state court's likely stance." Andrew Robinson Int'l, Inc. v.
Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).
We first consider whether Mistretta's holding is
relevant to the divisibility inquiry before deciding whether it
accurately reflects Massachusetts state law. The precise question
before us is whether the differing items involved in committing
each form of the offense--intentional versus reckless mens rea;
slight contact versus bodily injury--"merely specif[y] diverse
means of satisfying a single element of a single crime," or
constitute "elements in the alternative, . . . thereby defin[ing]
multiple crimes." Mathis, 136 S. Ct. at 2249. Whether
Massachusetts requires that jurors unanimously agree on the form
of ABDW under which they are convicting a defendant informs this
analysis because the Supreme Court and this court have repeatedly
stated that jurors must unanimously find that the government proved
available at http://www.mass.gov/courts/docs/courts-and-
judges/courts/district-court/jury-instructions-criminal/6000-
9999/6300-assault-and-battery-by-means-of-a-dangerous-
weapon.pdf.
- 30 -
all "elements" of an offense beyond a reasonable doubt to convict
a defendant. See id. at 2248 ("[Elements] are what the jury must
find beyond a reasonable doubt to convict the defendant . . . .
Facts, by contrast, are mere real-world things--extraneous to the
crime's legal requirements."); Descamps, 133 S. Ct. at 2288 ("The
Sixth Amendment contemplates that a jury . . . will find [] facts
[about the defendant's conduct] unanimously and beyond a
reasonable doubt. And the only facts the court can be sure the
jury so found are those constituting elements of the offense . .
. ."); id. at 2298 (Alito, J., dissenting) ("The feature that
distinguishes elements and means is the need for juror agreement
. . . ."); Richardson v. United States, 526 U.S. 813, 817 (1999);
Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality opinion);
United States v. LaPlante, 714 F.3d 641, 647 (1st Cir. 2013).
State law as to what facts a jury must agree upon
unanimously plays a crucial role in distinguishing between
elements and mere factual means.9 See Mathis, 136 S. Ct. at 2250
("[The locations listed in the Iowa burglary statute] lay out
alternative ways of satisfying a single locational element, as the
Iowa Supreme Court has held: Each of the terms serves as an
'alternative method of committing [the] single crime' of burglary,
9 Before Mathis, the circuits were split on this question. See
Almanza-Arenas v. Lynch, 815 F.3d 469, 479–81 (9th Cir. 2016) (en
banc) (recognizing circuit split).
- 31 -
so that a jury need not agree on which of the locations was actually
involved." (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa
1981))). Thus, if Mistretta accurately reflects Massachusetts
state law, it means that Massachusetts ABDW is indivisible.
We must therefore predict how the SJC would decide
whether a specific unanimity instruction is required in an ABDW
prosecution, using Mistretta as a reliable piece of evidence.
Mistretta applied the standard set forth by the SJC in Santos for
determining when jury unanimity is required. In Santos, the
defendant claimed that the trial judge had erred by refusing to
give a specific unanimity instruction with respect to the
indictment charging armed robbery. 797 N.E.2d at 1194. He argued
that whether he had used force on the victim or had merely placed
the victim in fear constituted different "theories" of the assault
element of armed robbery, thus requiring specific unanimity. Id.
at 1196. The SJC disagreed and held that a specific unanimity
instruction was not required. Id. at 1198.
Santos reached this holding on the basis of three
intermediate conclusions. First, a specific unanimity instruction
is only required when there is more than one "theory" of guilt for
a charged crime, and the alternative "theories" are "substantively
distinct or dissimilar." Santos, 797 N.E.2d at 1197–98. Second,
two "alternate method[s] by which a single element may be
established" that are "closely related" are not substantively
- 32 -
distinct or dissimilar. Id. Third, "actual force" and "threat of
force" are closely related factual means of satisfying a single
element. Id. at 1198. The second and third conclusions indicate
that actual force and threat of force are not substantively
distinct or dissimilar. Thus, by the first conclusion, a specific
unanimity instruction was not required.
Dictum in the Santos opinion clarifies that, in
determining whether two forms of an offense are "substantively
distinct or dissimilar" theories or "closely related" methods of
proving the same elements, courts should consider the mens rea
requirements of the two forms of the offense. The SJC offered
manslaughter as an example of a crime that may be proved by two
different theories that are "substantively distinct or
dissimilar"--namely, voluntary manslaughter and involuntary
manslaughter. Id. at 1197. Under Massachusetts law, "voluntary
manslaughter is an intentional killing, which is mitigated by
extenuating circumstances,'" Commonwealth v. Squailia, 706 N.E.2d
636, 642 (Mass. 1999) (emphasis omitted), while "[i]nvoluntary
manslaughter is an unintentional, unlawful killing caused by
wanton or reckless conduct," Commonwealth v. Earle, 937 N.E.2d 42,
48 (Mass. 2010). The Santos opinion concluded that voluntary and
involuntary manslaughter were not closely related because of their
different mens rea requirements. 797 N.E.2d at 1197 ("[V]oluntary
and involuntary manslaughter are mutually exclusive--one cannot
- 33 -
kill both intentionally and unintentionally at the same time.").
This conclusion could apply equally to Massachusetts ABDW section
(1) and Massachusetts ABDW section (2), which, like the two forms
of manslaughter, differ in that one requires intent while the other
requires recklessness. Thus, this dictum from Santos indicates
that Mistretta was wrongly decided.
Mistretta, however, also drew support from a later SJC
opinion, Porro, 939 N.E.2d 1157, which complicates the analysis.
Porro addressed the relationship between two different types of
assault: attempted battery assault and threatened battery
assault. The court held that "[a]n assault under a theory of
attempted battery . . . has elements different from an assault
under a theory of threatened battery." Id. at 1163. The elements
of attempted battery assault are that "the defendant 'intended to
commit a battery, took some overt step toward accomplishing that
intended battery, and came reasonably close to doing so.'" Id.
(citation omitted). The elements of threatened battery assault
are "that the defendant engaged in conduct that a reasonable person
would recognize to be threatening, that the defendant intended to
place the victim in fear of an imminent battery, and that the
victim perceived the threat." Id.
Although these two forms of assault have different
elements, Porro contains a statement (itself also dictum) that a
specific unanimity instruction is not required in prosecutions for
- 34 -
assault. Id. at 1165–66. This statement, if adopted, would extend
Santos's holding as to the assault element of robbery to the
substantive crime of assault:
Because attempted battery and threatened
battery "are closely related," we do not
require that a jury be unanimous as to which
theory of assault forms the basis for their
verdict; a jury may find a defendant guilty of
assault if some jurors find the defendant
committed an attempted battery (because they
are convinced the defendant intended to strike
the victim and missed) and the remainder find
that he committed a threatened battery
(because they are convinced that the defendant
intended to frighten the victim by threatening
an assault).
Porro, 939 N.E.2d at 1165 (quoting Santos, 797 N.E.2d at 1197);
see also Commonwealth v. Arias, 939 N.E.2d 1169, 1173–74, 1173 n.2
(Mass. App. Ct. 2010).
Porro's dictum is in tension with United States Supreme
Court precedent. Under a literal reading, Porro states that the
two forms of assault have different elements and that a jury may
convict a defendant of assault without agreeing unanimously about
which elements of the crime were satisfied. Such a holding would
contradict the definition of "element" as it is used by the Supreme
Court. See, e.g., Mathis, 136 S. Ct. at 2250. While we could
reject the SJC's conclusion about the specific unanimity
requirement for assault as dictum, we note that it has been
incorporated into the model jury instructions for assault. See
Massachusetts Criminal Model Jury Instructions for Use in the
- 35 -
District Court, Instruction 6.120, at 4 n.9 (2009 ed.), available
at http://www.mass.gov/courts/docs/courts-and-
judges/courts/district-court/jury-instructions-criminal/6000-
9999/6120-assault.pdf. Thus, we conclude that the Porro opinion
uses the word "element" differently than the Supreme Court. Under
the Supreme Court's usage, Porro's dictum that a specific unanimity
instruction is not required in prosecutions for assault implies
that the two forms of assault are alternative means of proving the
same elements.10
Porro is also in tension with the dictum from Santos
from which we concluded that Mistretta was wrongly decided. Like
the example of voluntary and involuntary manslaughter, the two
forms of assault considered in Porro have different mens rea
requirements. Attempted battery requires an intent to commit a
battery, while threatened battery requires an intent to place the
victim in fear of an imminent battery. Porro, 939 N.E.2d at 1163.
These two mens rea requirements are more closely related than
intent and recklessness, however. While "one cannot kill both
intentionally and unintentionally at the same time," Santos, 797
N.E.2d at 1197, one could easily intend both to commit a battery
10 This interpretation of Porro is consistent with the central
holding of that opinion, which is that both forms of assault are
generally lesser included offenses of assault and battery, even
though the "elements" of assault and battery and threatened battery
do not overlap in the way that is usually required. See Porro,
939 N.E.2d at 1165.
- 36 -
and to place a victim in fear of an imminent battery. Therefore,
Porro does not alter the conclusion we reached above. We predict
that the SJC would not follow Mistretta.
This conclusion is compatible with the language the
United States Supreme Court has used to distinguish elements from
mere facts. Whether one commits ABDW with an intentional or
reckless mens rea carries with it an important legal consequence:
it changes the required result of the battery needed for a
conviction. If the actor intentionally uses force upon another,
no injury must be proven, but if the actor intends only to commit
conduct that is reckless, physical or bodily injury must be proven.
Burno, 487 N.E.2d at 1368–69. The differences in the two forms of
Massachusetts ABDW--intentional versus reckless mens rea, slight
touching versus bodily injury--are substantively distinct and
therefore constitute alternative elements, rather than different
factual means of establishing a single set of elements. See
Mathis, 136 S Ct. at 2248 ("Facts . . . . are 'circumstance[s]' or
'event[s]' having no 'legal effect [or] consequence.'" (quoting
Black's Law Dictionary 709 (10th ed. 2014))). Accordingly, we
find that the crime of Massachusetts ABDW is divisible.
Of course, given our finding that Massachusetts ABDW
section (1) is a crime of violence, our conclusion that ABDW is
divisible only makes a difference if Massachusetts ABDW
section (2)--the reckless version of ABDW--is not a crime of
- 37 -
violence. Prior to the Supreme Court's recent decision in Voisine
v. United States, 136 S. Ct. 2272 (2016), precedent directly
dictated that the reckless, unintentional causing of injury, such
as unintentionally hitting a pedestrian while driving recklessly,
was not a crime of violence under 18 U.S.C. § 16(b).11 See Fish,
758 F.3d at 10–14. Our holding in Fish was based on the reasoning
of Leocal v. Ashcroft, 543 U.S. 1 (2004), which interpreted the
phrase "use . . . physical force against the person or property of
another" to require "active employment." 543 U.S. at 9; see also
Fish, 758 F.3d at 9-10. Such reasoning would seem to apply equally
to the pertinent Guidelines definition of a crime of violence at
issue here. Thus, Fish would dictate that a conviction for the
reckless version of ABDW is not a crime of violence under U.S.S.G.
§ 4B1.2(a)(1). Voisine, though, calls into question the continuing
validity of Fish, as well as the similar and analogous holdings of
at least ten other circuits. See Fish, 758 F.3d at 9-10, 10 n.4
(listing cases).
In Voisine, the Supreme Court held that 18 U.S.C.
§ 922(g)(9)'s prohibition against gun possession for persons
convicted "of a misdemeanor crime of violence" extended to persons
11Section 16(b) provides that "any . . . offense that is a felony
and that, by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense" is a crime of violence. 18
U.S.C. § 16(b).
- 38 -
convicted of such an offense even under a reckless theory of mens
rea. 136 S. Ct. at 2282. It reasoned that the word "use" in
18 U.S.C. § 921(a)(33)(A), which defines the term "misdemeanor
crime of domestic violence" as including a misdemeanor that "has,
as an element, the use or attempted use of physical force,"
encompasses "an act of force carried out in conscious disregard of
its substantial risk of causing harm," i.e., reckless conduct.
136 S. Ct. at 2279. The government contends that this reasoning
applies equally in interpreting the word "use" in § 4B1.2(a)(1) of
the Guidelines.
That this contention is correct, however, is not
entirely clear. As Tavares points out, Voisine itself specifically
left open the question whether reckless conduct is encompassed in
the similar statutory language found in 18 U.S.C. § 16. See
Voisine, 136 S. Ct. at 2280 n.4. And in reaching its conclusion,
the Court also relied upon the history and purpose of § 922(g)(9),
explaining that a contrary finding "would have undermined
Congress's aim," id. at 2281, to prohibit domestic abusers from
possessing firearms in light of the fact that "a significant
majority of jurisdictions . . . defined such misdemeanor offenses
to include the reckless infliction of bodily harm," id. at 2280.
Indeed, Voisine recognizes in a footnote that "[c]ourts have
sometimes given [§ 921(a)(33)(A) and § 16] divergent readings in
light of differences in their contexts and purposes, and we do not
- 39 -
foreclose that possibility with respect to their required mental
states." Id. at 2280 n.4. Further muddying the waters is the
different statutory language used in each statute: § 921(a)(33)(A)
refers only to the "use of physical force," 18 U.S.C.
§ 921(a)(33)(A)(ii), whereas § 4B1.2(a)(1) of the Guidelines
refers to the "use of physical force against the person of
another," U.S.S.G. § 4B1.2(a)(1) (emphasis added). See Leocal,
543 U.S. at 9 ("Whether or not the word 'use' alone supplies a
mens rea element, the parties' primary focus on that word is too
narrow . . . . The critical aspect of § 16(a) [in determining
that it excludes negligent or accidental conduct] is that a crime
of violence is one involving the 'use . . . of physical force
against the person or property of another.'"). But see Voisine,
136 S. Ct. at 2279 (stating that the quoted reasoning from Leocal
"fully accords with our analysis here").
Even a careful reader of this opinion may at this point
feel lost. We began with a seemingly simple question. Has Tavares
been convicted of a crime of violence? Trying to answer that
question then led us down several rabbit holes: Is Massachusetts
ABDW a divisible offense under Descamps and Mathis? How does
Massachusetts law define the relationship between the two common
forms of the offense? Does Voisine upend the circuits' wide
consensus that recklessly causing injury is different than using
force against a person?
- 40 -
In a sensible world, Congress and/or the Sentencing
Commission would have made a list of state and federal laws deemed
to be crimes of violence that warranted the desired penalties and
sentencing enhancements. At its margins, such a list might be
over- or under-broad. It would, though, be straightforward.
Instead of using a simple list, the drafters adopted
abstract descriptions of the crimes that would appear on such a
list, employing terms such as "physical force," "use," "injury,"
and so on. The result is a Rube Goldberg jurisprudence of
abstractions piled on top of one another in a manner that renders
doubtful anyone's confidence in predicting what will pop out at
the end. Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 483–84 (9th
Cir. 2015) (en banc) (Owens, J., concurring).
What pops out matters a great deal. In Fish, one could
not know whether certain conduct was lawful or criminal unless one
knew whether a prior crime was a crime of violence. Here, Tavares
could not know--within years--the guidance applicable to his
sentencing. Nor could one get confident answers by asking a
lawyer--or even a judge. So what do we do here? For three reasons,
we stop short of finally deciding now whether a conviction under
the reckless version of ABDW qualifies as a crime of violence.
First, the Supreme Court has granted certiorari in
Beckles v. United States, 616 F. App'x 415 (11th Cir. 2015), cert.
granted, 136 S. Ct. 2510 (2016). Although the Eleventh Circuit
- 41 -
decided that case on the narrow ground that Johnson II did not
apply to a career offender enhancement based on the Guidelines
commentary to § 4B1.2, id. at 415–16, the petition for certiorari
raised the much broader question as to whether Johnson II applies
to the residual clause of § 4B1.2(a)(2). See Petition for Writ of
Certiorari at i, Beckles v. United States, No. 15-8544 (U.S. Mar.
9, 2016), 2016 WL 3476563. The Supreme Court granted the petition
in full, 136 S. Ct. 2510, 2510, and thus may well answer this
broader question. If the Court decides that Johnson II does not
so apply, then the district court may consider if it can once again
rely on the residual clause or if the government has forfeited any
reliance on that clause by conceding the issue on appeal.
Second, even if Beckles does not put the residual clause
back in play in this case, it will only be necessary to decide
whether the reckless version of ABDW is a crime of violence if
there are no Shepard documents that make clear that Tavares's ABDW
conviction was for the intentional version of the offense. As
Tavares noted in his supplemental brief, the Massachusetts
district court criminal model jury instructions, at least prior to
this year, instructed Massachusetts courts to use a jury verdict
form for ABDW charges that would plainly reveal which version of
the offense was the offense of conviction.12 Common sense suggests,
12 They may still do so for ABDW, though not for assault and
battery. See note 8, supra.
- 42 -
too, that by far the most common version of the offense charged is
the intentional version. In sum, whether the reckless version of
ABDW is also a crime of violence will likely not make any
difference in this case.
Third, in the event that it does make a difference, the
parties will be able to brief the issue and the district court--
for the first time--will be able to consider it. We, in turn,
will then have the benefit of a fully developed record, the
district court's views, and likely more precedent to consider as
we and other courts encounter the "recklessness" question in other
cases in which the answer does make a difference. We therefore
remand to the district court to allow the government the
opportunity to put forth Shepard documents that clarify whether
Tavares's ABDW conviction was for the intentional or reckless
version of the offense.
CONCLUSION
We affirm Tavares's conviction, but remand for
reconsideration of his sentence consistent with this opinion. If
the district court concludes that either the Resisting Arrest
conviction or the ABDW conviction did not qualify under the career
offender guideline, it should vacate and resentence. Otherwise,
it should vacate and then re-enter the present sentence.
- 43 -