United States v. Carrigan

United States Court of Appeals
For the First Circuit

No. 11-1916

UNITED STATES OF AMERICA,

Appellee,

v.

LAMAR CARRIGAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Stahl and Thompson,
Circuit Judges.

Sharon Fray-Witzer, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.

July 19,2013
 TORRUELLA, Circuit Judge. Lamar Carrigan ("Carrigan")

pled guilty to one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). He did so without

a plea agreement and without reserving the right to appeal the

denial of his motion to suppress the firearm. He was sentenced

under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e),

to 15 years' imprisonment and three years of supervised release.

He appeals his conviction on several grounds. First, he

argues that the entry of a guilty plea without a reservation of the

right to appeal the denial of his motion to suppress was the result

of ineffective assistance of counsel. Second, he contends that he

suffered prejudice from the failure to reserve the right to appeal

said motion and that the police neither had reasonable suspicion to

stop him nor probable cause to arrest him. Finally, regarding his

sentence, Carrigan argues that he does not qualify as an armed

career criminal ("ACC"), and that the ACCA's residual clause is

unconstitutionally vague. We affirm.

I. Factual and Procedural Background

According to 911 call transcripts, at 1:30 a.m. on

February 1, 2008, the Boston Police Department ("BPD") received a

911 call from a motorist who said that the driver of an Acura had

pulled up alongside him and identified himself as "the Boston

Police" at the intersection of Columbia Road and Washington Street

in Boston. The driver of the Acura asked if the motorist was

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alone, then told him to pull over. When the caller pulled his

vehicle over, the driver of the Acura got out of his car,

approached the motorist's vehicle and pointed a gun at the

motorist's face. The motorist put his car in drive and sped away.

Soon after, the Acura sped past the motorist down Quincy Street

toward Beverly. The caller reported to the 911 operator that he

was following the Acura and its license plate number was 446A20.

The motorist said the color of the Acura was navy blue or black,

and identified the driver as a black man wearing a sideways,

brown-and-blue hat (which he also described as two-toned), a black

leather jacket and baggy jeans. The caller told the dispatcher his

name was Jasmanie González, a name the police could not later find

by searching police records. He also provided his phone number so

he could be called back.

When the 911 dispatcher called the motorist back and

asked him where he was because an officer needed to take a report,

the caller stated that he was in Roslindale. However, he did not

provide his home address, declined to file a police report and

refused to be involved in the matter any further. The dispatcher

called the motorist a second time for additional information before

broadcasting the report to police units in the area. The

dispatcher detailed the incident and gave the caller's description

of the car, driver, and the reported license plate number.

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 According to BPD Sergeant Thomas Brooks' testimony during

the suppression hearing, ten minutes after the dispatcher's

broadcast, Sgt. Brooks observed a vehicle fitting the description

of the car described by the caller parked on Southwood Street,

Boston, a short distance from a pub. The car was unoccupied.

Sergeant Brooks reported the car's license plate number to the

dispatch as 446AT2. The dispatcher then responded that the car was

registered to an owner in Norwell. Another officer then broadcast

that he believed the car was used by "Lamar Carrington," who was

not the registered owner reported by dispatch. At this time, more

officers arrived in the area, including Sergeant Detective John

Fitzgerald, who was in plain clothes and driving an unmarked police

car. Fitzgerald, who also testified, parked across the street from

the Acura. Several marked police cars waited by the nearby

intersection of Southwood and Edgewood, where the Acura would most

likely have to pass.

Just before 2:00 a.m., Fitzgerald broadcast over the

radio that he saw the lights in the Acura turn on, indicating that

the car was being unlocked by remote control. Soon after, a black

male wearing a hat, leather jacket and jeans entered the vehicle

and began driving toward the intersection where the marked BPD cars

waited. Fitzgerald followed the Acura, maintaining a distance of

60 to 70 feet. As the Acura came around a curve, it was possible

for the driver to see the marked cars at the intersection. The

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driver of the Acura then made a right turn and pulled into a

residential driveway, driving to the very end of it and turning the

car's lights off. Fitzgerald stopped his car and told all officers

in the area to "stand by."

The driver backed down the driveway, opened his door

briefly, and then accelerated back up the driveway. Several

officers, some with their weapons drawn, approached the vehicle.

The officers identified themselves as Boston Police and told the

driver to raise his hands. One of the officers opened the

passenger's side door, turned off the ignition, and put the car in

park. Another officer then pulled the driver, who was later

identified as Carrigan, out of the driver's side door. Carrigan

was handcuffed, pushed to the ground, and pat-frisked. The

officers found a loaded semi-automatic firearm in Carrigan's jacket

pocket.

On November 18, 2010, after being indicted on one count

of being a felon in possession of a firearm, Carrigan filed a

motion to suppress the firearm and ammunition, alleging that they

were the result of an unlawful search and seizure. Carrigan

contended that the officers lacked probable cause to arrest him and

lacked reasonable suspicion to even stop him. The district court

held a hearing on February 8, 2011, on Carrigan's motion to

suppress, where some of the recorded 911 calls were played. The

judge stated that there was not much of a question on the

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reasonable suspicion point, and that it was likely that probable

cause for the arrest would be established as well, but wanted to

listen to the recordings in full before formally disposing of the

motion. The judge denied Carrigan's motion to suppress on February

14, 2011, via electronic order, noting that a memorandum would

follow.

On March 3, 2011, Carrigan pled guilty. He did so

without securing a plea agreement and without reserving the right

to appeal the denial of his suppression motion. At the plea

hearing, the government noted that Carrigan would be facing a

minimum of 15 years in prison because of his status as an ACC.

Carrigan's attorney stated to the court that he had explained this

to Carrigan, but also said he intended to raise objections to

Carrigan's status as an ACC at the sentencing hearing. The court

accepted Carrigan's plea.

A Pre-Sentence Report ("PSR") that issued on April 15,

2011, classified Carrigan as an ACC. Carrigan challenged his

status as an ACC, arguing that he did not possess the requisite

three prior convictions for violent felonies.

Based on Guideline calculations and Carrigan's ACC

status, the court sentenced him to the mandatory minimum of 15

years' imprisonment as prescribed by the ACCA. After the sentence

was imposed, defense counsel asked the judge to issue the

previously promised memorandum regarding the denial of Carrigan's

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motion to suppress. The judge responded with surprise, stating

that, because Carrigan had pled guilty shortly after the denial and

did not reserve his right to appeal, she had not written a

memorandum and would not issue one.

Carrigan filed this timely appeal. We take each of his

arguments in turn.

II. Analysis

A. Ineffective Assistance of Counsel

Carrigan's first argument on appeal is that his counsel

was ineffective because he advised Carrigan to enter a straight

plea without informing him of the consequences of not preserving

his right to appeal the denial of his suppression motion. In

support of his argument, he posits that his attorney was actually

unaware that Carrigan would be unable to appeal the denial of the

motion to suppress if he pled without making a reservation.

According to Carrigan, it is apparent from the record that his

attorney was surprised when the district court stated he would be

unable to appeal the order.1

1
Carrigan points to the following exchange, which took place
after the sentencing:

MR. DEMISSIE: Your Honor, we had a motion to suppress
hearing, and that was denied, and a finding and rulings
have not been filed.

THE COURT: But he's pled guilty. He pled guilty without
--

MR. DEMISSIE: Prior to pleading guilty, you had a motion

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 To show that his Sixth Amendment right to counsel was

violated, Carrigan must establish that: (1) his attorney's

performance was deficient under an objective standard of

reasonableness; and (2) his defense suffered prejudice as a result.

Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). To

demonstrate prejudice, Carrigan must "show a reasonable probability

that the end result of the criminal process would have been more

favorable" but for defense counsel's deficient performance.

Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012); see also United

States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012). Failure to

satisfy one of the Strickland prongs is fatal and, therefore, we

are free to tackle either prong first. See United States v.

Caparotta, 676 F.3d 213, 219-220 (1st Cir. 2012).

to suppress --

THE COURT: No, I understand that, but he pled guilty, not
a conditional plea, not a plea that would have preserved
his rights, but he pled guilty fully.

MR. DEMISSIE: Yes.

THE COURT: So I didn't finish the findings because once
he pleads guilty and doesn't preserve that issue, there's
really no issue. This was a full plea, not a conditional
one, so I don't think that you have an appellate basis on
that at all.

MR. DEMISSIE: From the denial of the motion to suppress?

THE COURT: That's right, because if you want to plea and
preserve your legal rights, you have to do it as a
conditional plea . . . .

-8-
 As a general rule, ineffective assistance of counsel

claims must be raised via a collateral attack, and not via direct

appeal. United States v. Soldevila-López, 17 F.3d 480, 485 (1st

Cir. 1994). We have, however, long recognized that "where the

critical facts are not genuinely in dispute and the record is

sufficiently developed to allow reasoned consideration of an

ineffective assistance claim," we can entertain it. Caparotta, 676

F.3d at 219 (quoting United States v. González-Arimont, 268 F.3d 8,

13 (1st Cir. 2001)). Both parties agree that the record is

sufficiently developed for this court to determine if Carrigan

suffered prejudice by not reserving the right to appeal. For the

reasons stated below, we find that the district court correctly

denied the motion to suppress and that, therefore, Carrigan fails

to show he suffered prejudice. Consequently, we do not reach the

question of counsel's ineffectiveness. See Caparotta, 676 F.3d at

219-20.

B. The Motion to Suppress

1. Reasonable Suspicion to Conduct a Terry Stop

In reviewing the denial of a motion to suppress, we will

review findings of fact for clear error and legal conclusions de

novo. United States v. Brown, 500 F.3d 48, 58 (1st Cir. 2007). In

this case, there are no factual findings for us to review, given

that the district court did not have to issue the memorandum

setting forth the rationale for its denial of the motion to

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suppress after Carrigan pled. We thus review Carrigan's Fourth

Amendment claim de novo.

Carrigan first aims to establish that the police unduly

relied on the information provided by an anonymous 911 tipster and

that they lacked reasonable suspicion to conduct an investigatory

stop.

Our inquiry in this regard is, of course, guided by the

Supreme Court's watershed decision in Terry v. Ohio, 392 U.S. 1

(1968). In Terry, the Court delineated the baseline test for

determining the constitutionality, under the Fourth Amendment, of

investigatory stops conducted by police officers. Brown, 500 F.3d

at 54. Under Terry, "[p]olice officers may lawfully effect an

investigatory stop as long as they can 'point to specific and

articulable facts which, taken together with rational inferences

from those facts, reasonably warrant' such an intrusion." Id.

(citing Terry, 392 U.S. at 21). Reasonable suspicion is a concept

that lies somewhere between a visceral hunch and probable cause.

See Illinois v. Wardlow, 528 U.S. 119, 123 (2000) ("reasonable

suspicion" is a less demanding standard than probable cause and

requires a showing considerably less than preponderance of the

evidence" but still requires "at least a minimal level of objective

justification for making the stop"). Whether the officers had

enough information to possess reasonable suspicion "must be

evaluated through a broad-based consideration of all the attendant

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circumstances." Brown, 500 F.3d at 54 (citing Florida v. Royer,

460 U.S. 491, 500 (1983); United States v. Chhien, 266 F.3d 1, 5

(1st Cir. 2001)).

As recounted above, a 911 caller reported being the

victim of an assault. He provided a description of the alleged

perpetrator of the crime and of the car he was driving, a license

plate number, the direction the vehicle was traveling and a phone

number where he was successfully reached twice. He provided some

of this information to the 911 operator while the purported

perpetrator's vehicle was still allegedly in his sight. He was

then called back twice and twice he recounted the incident in a way

that seems reasonably consistent and coherent.

Carrigan argues that the description of the clothes the

alleged perpetrator was wearing differed in several aspects from

what Carrigan was wearing when the police first observed him

approaching the car, and that, in any case, the description was

corroborated only in innocent details. The caller said the

perpetrator of the alleged assault was wearing a brown-and-blue hat

(which he also described as two-toned), a black leather jacket and

baggy jeans. Sgt. Fitzgerald testified during the evidentiary

hearing that, when he first spotted Carrigan coming out of the bar,

he was wearing a blue and orange hat (with alternating blue and

orange panels all the way around), a brown leather jacket with

orange square patches and black jeans. We think that the

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descriptions sufficiently matched and that, although the caller

stated that the hat was brown and blue, and it turned out to be

orange and blue, the discrepancy is not so large as to warrant a

finding of an improper identification. On the same token, the

caller described the jacket as black leather when, according to

Sgt. Fitzgerald, it was a leather jacket with brown and orange

patches. We, however, do not think the lack of a perfect match is

dispositive in this case.

Carrigan further argues that, aside from corroboration of

innocent and readily observable details regarding his general

appearance, the tipster did not provide information that could be

deemed reliable. In fact, he says, the caller only provided a

license plate and car type, which are also readily observable

elements that could have been used, for example, by someone trying

to frame him. He cites United States v. Monteiro, 447 F.3d 39 (1st

Cir. 2006), in support of his argument that corroboration of a

license plate number does not provide reasonable suspicion. In

Monteiro, we reviewed the reliability of a tip received through a

third party that included a license plate number for a car that was

spotted by police days after the tip was received. We found that

the mere offering of a license plate number by a tipster, although

providing "a solid means of identi[fying]" the suspect, did nothing

to corroborate the tipster's assertion that the suspect had

committed a crime. Id. at 47. We also stated, however, that the

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amount of information "required to establish the requisite quantum

of suspicion" depends on the reliability of the tip. Id. at 48.

That is, the more unreliable a tip appears, the more information

will be required to establish reasonable suspicion.

Carrigan's argument might be stronger if the police had

relied solely on the caller's information and moved in to detain

Carrigan as soon as they spotted him leaving the bar and walking to

the Acura. But the information that the police had at the time

they conducted the Terry stop did not consist of information

provided by the 911 caller alone. Indeed, once Carrigan got into

the Acura, the police began observing him. They saw that, after

driving down the street, Carrigan apparently attempted to avoid

several police cars that were blocking the upcoming intersection

and acted suspiciously when he entered a driveway, drove to the

very end of it and shut off the car's lights. The police then

further observed Carrigan back down the driveway almost all the way

to the street, open and close his door and drive up the driveway

once again. The Supreme Court has stated that "evasive behavior is

another pertinent factor in determining reasonable suspicion."

Wardlow, 528 U.S. at 124. Given what the officers already knew,

they reasonably interpreted Carrigan's behavior as unprovoked

flight warranting further investigation. Although it is well-

settled that individuals have a fundamental right to be left alone,

it is also settled that "[f]light, by its very nature, is not

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'going about one's business'; in fact, it is just the opposite."

Id. at 125. It was at this point, once they had matched the

description provided by the caller and had observed Carrigan

behaving suspiciously, that the officers decided to move in.

A broad-based consideration of the different pieces of

individual information the police possessed up to the point of the

stop leads us to conclude that the officers had reasonable

suspicion to initiate a Terry stop. See Brown, 500 F.3d at 54. We

emphasize that it is the sum total of the available information

that justifies the finding of reasonable suspicion; no single

individual piece of information provided by either the caller or by

the police's direct observation of Carrigan would be enough, on its

own, to justify the Terry stop. We now turn to Carrigan's second

argument regarding suppression: that the Terry stop became a de

facto arrest, and that the police officers lacked probable cause to

arrest him.

2. Probable Cause to Make an Arrest

According to Sgt. Fitzgerald, once Carrigan had driven up

the driveway a second time, several officers, including himself,

approached the Acura. Some of the officers had their guns drawn.

The officers yelled to Carrigan to show his hands. Two officers

then entered the Acura through the passenger-side door, turned off

the engine and took physical control of Carrigan. Once the

officers had Carrigan on the ground and on his stomach, they

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handcuffed him and patted him down. They discovered a firearm in

the front left pocket of his jacket. According to the PSR,

Carrigan disobeyed the command to show his hands. Carrigan did not

dispute this assertion in his objections to the PSR.

Carrigan argues that, as soon as the officers physically

went into the car and pulled him out, the Terry stop became a de

facto arrest. He contends that, since the officers lacked probable

cause to arrest him, the seizure of the firearm occurred in the

context of an illegal arrest and should be suppressed. The

government, for its part, argues that the police may take physical

control of and handcuff a person without turning a Terry stop into

a de facto arrest when it is necessary "to protect their own safety

and the safety of others in the area." United States v. Mohammed,

630 F.3d 1, 6 (1st Cir. 2010), cert denied 131 S. Ct. 2127 (2011).

A de facto arrest materializes "when a reasonable person

in the suspect's position would have understood, given the

circumstances, that he was essentially under arrest." Id.. It can

safely be said that when reasonable people are forcefully pulled

out of a car and handcuffed, they will generally understand

themselves to be under arrest. We have stated, however, that due

to the wide and unpredictable array of scenarios officers face in

the course of confronting suspects, "the touchstone is the

reasonableness of the measure undertaken to quell or confirm the

officers' suspicions." Id. (quoting Klaucke v. Daly, 595 F.3d

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20, 25 (1st Cir. 2010)) (alteration and internal quotation marks

omitted). When the government intends to justify the use of

handcuffs in the context of a Terry stop it must "point to some

specific fact or circumstance that could have supported a

reasonable belief" that the use of handcuffs was necessary. United

States v. Meadows, 571 F.3d 131, 141 (1st Cir. 2009) (quoting

United States v. Acosta-Colón, 157 F.3d 9, 18-19 (1st Cir. 1998)).

The government has indeed pointed to specific

circumstances that support the officers' reasonable belief that

restraining Carrigan with handcuffs was necessary to conduct the

Terry stop. It specifically argues that Carrigan had not put the

car in park and that the engine was still running when the officers

approached the vehicle, which increased the dangerousness of the

situation given that he could have used the car as a weapon. The

evidence presented during the evidentiary hearing, i.e., Sgt.

Fitzgerald's testimony and the photographs of the driveway,

established that the driveway was narrow. Sgt. Fitzgerald

testified that the space between the fence and the driver side of

the car was under 18 inches. The government also points out that

the officers suspected that Carrigan was armed and that, if

cornered, he could react violently. Given the confined space in

which the police encountered Carrigan, the fact that the car was

still running and in drive, and the fact that the police officers

reasonably suspected that Carrigan was armed, we must conclude that

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the officers acted reasonably in making sure Carrigan was seized

and handcuffed as part of the investigatory stop. Therefore, the

forceful seizure of Carrigan and the use of handcuffs in this

particular case did not turn the lawful Terry stop into a de facto

arrest because the officers had a reasonable belief that such

measures were necessary to protect their own safety. We now turn

to Carrigan's challenge to his sentence.

C. Sentencing under the ACCA

1. Applicable Law

Whether a defendant qualifies as an ACC is a question of

law that we review de novo. United States v. Mastera, 435 F.3d 56,

59 (1st Cir. 2006). Accordingly, we review de novo the legal

question of whether a prior conviction qualifies as a "violent

felony." United States v. Sánchez-Ramírez, 570 F.3d 75, 81 (1st

Cir. 2009).

Carrigan pled guilty to being a felon in possession of

an illegal firearm. See 18 U.S.C. § 922(g)(1). The ACCA

prescribes a 15-year mandatory minimum sentence for an offender who

has three prior convictions "for a violent felony or a serious drug

offense" when the unlawful possession of a firearm occurred. Id.

§ 924(e)(1). "Violent felony" is defined as:

any crime punishable for a term exceeding one
year . . . involving the use or carrying of a
firearm, knife, or destructive device . . .
that: (i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another [the force

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 clause]; or (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 [the residual clause].

Id. at 924(e)(2)(B).

In determining whether a prior conviction constitutes a

violent felony under the ACCA, courts employ a categorical

approach. United States v. Richards, 456 F.3d 260, 262-63 (1st

Cir. 2006). We thus determine if the statutory definition of the

prior offense fits the ACCA's definitions of "violent felony" under

either clause. In performing this categorical inquiry, courts

"typically must limit [their] inquiry to 'the fact of conviction

and the statutory definition of the prior offense.'" United States

v. Moore, 286 F.3d 47, 49 (1st Cir. 2002) (quoting Taylor v. United

States, 495 U.S. 575, 602 (1990)); see also United States v.

Holloway, 630 F.3d 252, 256 (1st Cir. 2011) ("This approach is

deemed categorical because we may consider only the offense's legal

definition, forgoing any inquiry into how the defendant may have

committed the offense."). If a prior conviction under state law is

at issue, "[s]tate court construction of the relevant state law

dictates our result." United States v. Hart, 674 F.3d 33, 41 (1st

Cir. 2012).

Determining whether a prior conviction falls within the

scope of the residual clause is somewhat more difficult when the

prior conviction relates to a crime proscribed by a statute that

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covers multiple offenses. Holloway, 630 F.3d at 256-57. If that

is the case, a set of rules dictates when the conviction may be

considered for purposes of the ACCA and when it may not. A court

must first determine which offense or offenses served as the

offense or offenses of conviction by looking at "a restricted set

of documents (e.g., indictment, plea colloquy, jury instructions)."

Id. at 257 (quoting Shepard v. United States, 544 U.S. 13, 26

(2005)). When the documents do not identify which of the offenses

proscribed was the offense of conviction, the conviction may be

used for purposes of the ACCA only when all of the offenses

proscribed in the particular statute qualify as violent felonies

under the ACCA. Id. If that is not the case, the conviction may

not be used as an ACCA predicate. Id.

2. Carrigan's prior convictions

Carrigan's prior convictions, all under Massachusetts

law, include: (1) a March 1996 conviction for armed robbery; (2) an

October 2000 conviction for resisting arrest; (3) a December 2000

conviction for assault with a dangerous weapon; and (4) two May

2006 convictions for assault and battery on a police officer and

assault and battery with a dangerous weapon. Carrigan concedes his

1996 conviction for armed robbery is a violent felony for purposes

of the ACCA. He argues, however, that his other convictions cannot

be considered "violent felonies" under the ACCA in his case because

in 2008, when the arrest in this case took place, no court had yet

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found those specific offenses to be ACCA predicates. He thus

argues that counting these convictions against him violated his due

process rights. In support of this argument, he cites United

States v. Lanier, 520 U.S. 259 (1997), where the Supreme Court

explained the fair warning requirement. He thus requests that the

we apply in his case "the canon of strict construction of criminal

statutes, or rule of lenity, [which] ensures fair warning by so

resolving ambiguity in a criminal statute as to apply it only to

conduct clearly covered." Id. at 266.

Contrary to what Carrigan argues, Lanier stands for the

proposition that the due process clause bars the application of a

novel construction of a statute where the scope of the statute is

ambiguous. See id. at 267 ("[T]he touchstone [of the due process

inquiry] is whether the statute, either standing alone or as

construed, made it reasonably clear at the relevant time that the

defendant's conduct was criminal."). Lanier does not apply where

the scope of a statute is ascertainable from the plain meaning of

its words. As explained above, the scope of application of the

ACCA is fairly clear both under the force clause and the residual

clause as to the type of offenses covered. The fact that at the

time Carrigan committed the instant offense no court had found that

the specific convictions Carrigan has under his belt were ACCA

predicates does not mean that the ACCA was ambiguous at that time

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and that the application of the rule of lenity is warranted. We

thus find Carrigan's argument under Lanier unavailing.

As discussed below, two of the convictions in question

are ACCA predicates which the district court correctly considered

in sentencing him as an ACC.2 Those two convictions, plus

Carrigan's conviction for armed robbery, which he concedes is an

ACCA predicate, properly constitute three prior convictions for

violent felonies. We take each argument in turn.

We first tackle Carrigan's argument that his 1998

conviction for resisting arrest cannot be considered a violent

felony under the ACCA. He argues that the crime of resisting

arrest may be committed recklessly, but does not further develop

this issue. In United States v. Weeks, we said that "resisting

arrest [under Massachusetts law] qualifie[s] as a 'crime of

violence' under U.S.S.G. § 4B1.2 [the career offender guideline],

and because that Guideline and the ACCA are similarly worded," a

court may treat a conviction for resisting arrest as a violent

felony for purposes of the ACCA. 611 F.3d 68, 73 (1st Cir. 2010)

2
Carrigan also argues that his December 2000 assault with a
dangerous weapon conviction should not count under the ACCA since
the Boston Municipal Court had determined his guilty plea to be the
result of ineffective counsel. The same municipal court also
rejected Carrigan's request to have his plea set aside because
Carrigan had not been prejudiced as he would be serving time for
the conviction concurrently with another offense. We need not
determine if this conviction would qualify Carrigan as an ACC
because we find that his three other violent felony convictions
suffice the statutory requirements.

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(citing United States v. Almenas, 553 F.3d 27, 34 n.7 (1st Cir.

2009) ("[F]or both prudential and precedential reasons, we have

read [the ACCA] and the almost parallel guideline language at issue

[in the guidelines definition of crime of violence] as being in

pari passu.")); see also United States v. Hart, 674 F.3d at 41 n.5

(1st Cir. 2012) ("The Sentencing Guidelines' term 'crime of

violence' and ACCA's term 'violent felony' are defined almost

identically. Accordingly, decisions construing one term inform the

construction of the other." (internal citations and quotation

marks omitted)).

Furthermore, contrary to what Carrigan argues, the two

methods of resisting arrest proscribed by Massachusetts law require

knowledge. See Mass. Gen Laws ch. 268, § 32B(a).3 Both methods

fall under either the force clause, see id. § 32B(a)(1), or the

residual clause, see id. § 32B(a)(2). Almenas, 553 F.3d at 33, 35.

3
In pertinent part, Mass. Gen Laws ch. 268, § 32B(a) states:

A person commits the crime of resisting arrest
if he knowingly prevents or attempts 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.

(emphasis supplied).

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Therefore, we conclude that the district court acted correctly in

finding that Carrigan's conviction for resisting arrest could be

considered, along with his conviction for armed robbery, as a crime

of violence for purposes of sentencing under the ACCA.

We must now determine whether Carrigan's conviction for

assault and battery with a deadly weapon and assault and battery of

a police officer also count as violent felonies for purposes of the

ACCA.

In Hart, we held that assault and battery with a deadly

weapon under Massachusetts law categorically qualifies as an ACCA

predicate under the ACCA's residual clause. 674 F.3d at 41-44. We

reasoned that the offense in question "clearly poses a serious

potential risk of injury, comparable to the degree of risk posed by

the enumerated offenses [of the residual clause]." Id. at 42. In

Hart, we also found that even if a conviction for assault and

battery with a dangerous weapon under Massachusetts law may

sometimes rest on a recklessness theory, "our analysis under the

residual clause is explicitly, and necessarily, limited to the

'ordinary case.'" Id. at 43 (citing James v. United States, 550

U.S. 192, 208 (2007)); see also id. at 43 n.7 (explaining that

"[r]egardless of the underlying theory, [assault and battery with

a deadly weapon] requires 'general intent to do the act causing

injury.'" (quoting Commonwealth v. Appleby, 380 Mass. 296, 308

(1979))). Prior to issuing Hart, we had ruled that assault and

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battery with a deadly weapon under Massachusetts law is a violent

felony under the career offender guidelines. See United States v.

Glover, 558 F.3d 71, 79-82 (1st Cir. 2009).

Finally, Carrigan argues that the ACCA's residual clause

is unconstitutionally vague. He acknowledges, however, that his

arguments may be foreclosed by this circuit's rulings in Weeks,

Hart and United States v. Dancy, 640 F.3d 455 (1st Cir. 2011). He

does not offer any new authority and he has not reformulated the

vagueness argument in any way that would prompt us to revisit our

previous rulings.4

III. Conclusion

For the reasons set forth above, we affirm Carrigan's

sentence.

Affirmed.

4
Carrigan filed a Fed. R. App. P. 28(j) letter asking this court
to find that his sentence is unconstitutional because the question
of his status as an ACC should have been submitted to the jury
pursuant to United States v. Alleyne, U.S. , 133 S. Ct. 2151
(2013). We disagree. In Alleyne, the Supreme Court stated that
Almendarez-Torres v. United States, 523 U.S. 224 (1998), remains
good law. See Alleyne, *10 n.1. In Almendarez-Torres, the Supreme
Court found that, where "the relevant statutory subject matter is
recidivism[,]" which "is as typical a sentencing factor as one
might imagine[,]" a crime is not being defined and, therefore, the
fact of the prior conviction need not be mentioned in the
indictment nor submitted to the jury. Id. at 230. Therefore, the
sentence imposed on Carrigan pursuant to the ACCA was based on a
determination of a sentencing factor, not a determination of an
element of an offense.

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