United States Court of Appeals
For the First Circuit
No. 02-2583
UNITED STATES OF AMERICA,
Appellee,
v.
BENNIE SANTOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Hon. Patti B. Saris, U.S. District Judge)
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Veronica J. White for appellant.
Theodore B. Heinrich, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief for
appellee.
March 30, 2004
STAHL, Senior Circuit Judge. On March 15, 2000, a
federal grand jury indicted Bennie Santos on three counts of
possessing with intent to distribute, and distributing, crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). On October 29,
2001, Santos pled guilty to one count pursuant to a plea agreement
under which the government agreed to dismiss the remaining counts.
At sentencing, the district court concluded that Santos
was a career offender based on two prior convictions--one for
assault and battery on a police officer (Mass. Gen. L. ch. 265, §
13D1) and another for simple assault and battery (Mass. Gen. L. ch.
265, § 13A2)--that it determined were "crimes of violence" under §§
4B1.1 and 4B1.2 of the United States Sentencing Guidelines. The
sole issue on appeal is whether this determination was appropriate.
With regard to the first predicate conviction--two counts
of assault and battery on a public servant--the district court had
before it a police report of the incident giving rise to the
conviction. The court, however, did not consider this report on
1
"Whoever commits an assault and battery upon any public
employee when such person is engaged in the performance of his
duties at the time of such assault and battery, shall be punished
by imprisonment for not less than ninety days nor more than two and
one-half years in a house of correction or by a fine of not less
than five hundred nor more than five thousand dollars."
2
"Whoever commits an assault or an assault and battery upon
another shall be punished by imprisonment for not more than two and
one-half years in a house of correction or by a fine of not more
than $1,000."
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the crime of violence issue. The report indicated that on December
28, 1995, three police officers
observed [Santos] traveling at a high rate of
speed in the area of John Eliot Square. A
motor vehicle stop was conducted at 71
Kennelworth Street. As Officers approached
the motor vehicle, a strong smell of burning
marijuana was coming from the motor vehicle. .
. . Santos, Benny . . . exited the motor
vehicle. . . . While [questioning him] I
observed him having difficulty speaking. I
asked him to open his mouth. The suspect
opened his mouth and I observed several
plastic bags of a white substance I believed
to be crack cocaine. When I asked the suspect
to spit them out he refused, pushed me and
attempted to flee. After a brief struggle and
with the assistance of P.O. Thompson, we were
able to place [Santos] under arrest. [Santos]
was able to swallow the plastic bags in his
mouth during the struggle.
In Roxbury District Court, after Santos admitted to these
facts and was placed on probation, the charges were continued
without a finding. On October 30, 1997, Santos was discovered in
violation of his probation terms and the charges were brought
forward, resulting in a conviction. He was sentenced to fifty-nine
days in prison.
As for the second predicate conviction, the district
looked to the charging instruments, which alleged that on June 3,
1996, Santos did "assault and beat" two victims, Robert Silva and
Clayborn Blair, in violation of Mass. Gen. L. ch. 265, § 13A.3 A
3
"Whoever commits an assault or an assault and battery upon
another shall be punished by imprisonment for not more than two and
one-half years in a house of correction or by a fine of not more
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third charge alleged that Santos committed an assault and battery
on Silva by means of a dangerous weapon, a knife, in violation of
Mass. Gen. L. ch. 265, § 15A. On January 22, 1997, Santos pled
guilty in Suffolk Superior Court to the two assault and battery
charges, and the assault and battery with a dangerous weapon charge
was filed without a change of plea. He was sentenced to three
years probation as to each assault and battery count and ordered to
participate in a violence prevention program. On November 7, 1997,
the Superior Court, after finding him in violation of his
probation, revoked probation and imposed a sentence of one year in
prison.
The district court relied on United States v. Fernandez,
121 F.3d 777 (1st Cir. 1997), and United States v. Mangos, 134 F.3d
460 (1st Cir. 1998) in concluding that both predicate offenses were
"categorically" crimes of violence for purposes of the career
offender provision.4 The court set Santos's adjusted offense level
at twenty-nine, which included a three-level reduction for
acceptance of responsibility. Career offender status placed him in
criminal history category VI, resulting in a guideline sentencing
than $1,000."
4
The court remarked that "even if [it] did" have more
"discretion" free of our categorical approach to determining
"crimes of violence" under § 4B1.2, it would not exercise it for
the assault and battery on a police officer predicate because the
uncontested recitation of events in the police report only further
solidified its conclusion.
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range of 151 to 188 months' imprisonment. The court sentenced him
to 151 months' imprisonment, to be followed by thirty-six months of
supervised release. This appeal followed.
DISCUSSION
Whether a prior conviction qualifies as a predicate
offense under U.S.S.G. § 4B1.1 is a question of law that we review
de novo. United States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994).
We review factual conclusions by the sentencing court, which must
be supported by a preponderance of the evidence, for clear error.
United States v. Damon, 127 F.3d 139, 141 (1st Cir. 1997).
According to the sentencing guidelines, career offender status
attaches if:
(1) the defendant was at least eighteen years
old at the time the defendant committed the
instant offense of conviction; (2) the instant
offense of conviction is a felony that is
either a crime of violence or a controlled
substance offense; and (3) the defendant has
at least two prior felony convictions of
either a crime of violence or a controlled
substance offense.
USSG § 4B1.1. The only issue here is whether (3) is satisfied.
For purposes of the career offender provision, the
sentencing guidelines define "crime of violence" as:
(1) [A]ny offense under federal or state law
punishable by imprisonment for a term
exceeding one year that–
(i) has an element the use, attempted use, or
threatened use of physical force against the
person of another, or
(ii) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
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otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
USSG § 4B1.2.
Some offenses are easily recognized as crimes of violence
because they are specifically listed in the guideline, e.g., arson,
or because an essential element of the offense includes the use or
threatened use of force against another person, e.g., armed
robbery. But an offense not listed, and which does not include
among its elements the use, attempted use, or threatened use of
force against another person, still might qualify under § 4B1.2 if
it involves conduct that "presents a serious potential risk of
physical injury to another." We generally have employed a standard
"categorical approach" to determine whether an offense qualifies on
this third alternative ground. Our inquiry under the categorical
approach "is restricted to the statutory definition . . . of the
prior offense . . ., without regard to the particular facts
underlying [it]." United States v. Meader, 118 F.3d 876, 882 (1st
Cir. 1997); cf. Taylor v. United States, 495 U.S. 575, 600 (1990)
(adopting a similar approach when determining whether a crime is
one of violence under the armed career criminal provisions of 18
U.S.C. § 924(e)(2)(B)(ii)).5
5
The Armed Career Criminal Act, 18 U.S.C. § 924(e), contains
a sentence enhancement provision similar to that in the career
offender guideline, and courts have "look[ed] generally to cases
pertaining to either provision 'to elucidate the nature of the
categorical inquiry.'" United States v. Delgado, 288 F.3d 49, 53
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In United States v. Harris, 964 F.2d 1234, 1236 (1st Cir.
1992), we noted that "[t]he Massachusetts 'assault and battery'
statute covers two separate crimes--one involving actual (or
potential) physical harm and the other involving a 'nonconsensual'
but unharmful touching." See also Commonwealth v. Burke, 390 Mass.
480, 482-83 (1983). The Massachusetts statute for assault and
battery on a public servant reflects the same. See Fernandez, 121
F.3d at 779.
"[N]otwithstanding that its statutory definition admits
a non-violent means of commission," we held in Fernandez that
"assault and battery upon a police officer, in violation of Mass.
Gen. L. ch. 265, § 13D, is categorically a crime of violence within
the meaning of the career offender provisions" of § 4B1.1. 121
F.3d at 778. We considered it
self-evident that assault and battery upon a
police officer usually involves force against
another, and so meets that standard. At a
minimum, assault and battery upon a police
officer requires purposeful and unwelcomed
contact with a person the defendant knows to
be a law enforcement officer actually engaged
in the performance of official duties. See
Commonwealth v. Moore, 36 Mass. App. Ct. 455,
632 N.E.2d 1234, 1238 (Mass. App. Ct. 1994).
While it is true that neither violence, nor
the use of force, is an essential element of
the crime as statutorily defined, still,
violence, the use of force, and a serious risk
n.5 (1st Cir. 2002) (quoting United States v. Shepard, 231 F.3d 56,
63 n.7 (1st Cir. 2000)); see also Meader, 118 F.3d at 882 (Taylor's
categorical approach as applied to the ACCA is persuasive authority
for applications of USSG § 4B1.1).
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of physical harm are all likely to accompany
an assault and battery upon a police officer.
See, e.g., Winter, 22 F.3d 15 at 20 ("A
categorical approach is not concerned with
testing either the outer limits of statutory
language or the myriad of possibilities
girdled by that language; instead, a
categorical approach is concerned with the
usual type of conduct that the statute
purports to proscribe.").
Id. See also United States v. Santiago, 83 F.3d 20, 26-27 (1st
Cir. 1996); United States v. Pratt, 913 F.2d 982, 993 (1st Cir.
1990). This ends our inquiry with regard to Santos's predicate
conviction for assault and battery on a police officer. We are
steadfast in our view that the crime carries a particularly high
risk of physical injury and violence. The district court was not
required to look any further than the statute itself.
In Mangos, we suggested the same with regard to the
Massachusetts simple assault and battery statute:
While we recognize that the risks inherent in
the assault and battery upon a police officer
may differ from those involved in a simple
assault and battery, we believe that the
reasoning in Fernandez applies with similar
force to this case.
134 F.3d at 464. As with Santos's predicate conviction for simple
assault and battery, the charging document in Mangos stated that
the defendant "did assault and beat" the victim. We found that
this characterization placed the offense in the harmful battery
type, thereby meeting the definition of a crime of violence under
§ 4B1.2. Id. Here, the district court similarly recognized that
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with a simple assault and battery to which the defendant has
pleaded guilty, it is necessary to look to the charging instruments
to determine the nature of the offense. By reviewing the charging
documents, as in Mangos, the court properly determined that because
Santos was charged with assaulting and beating the victims, a
"crime of violence" was at issue.
Santos relies on the Seventh Circuit's handling of the
Massachusetts assault and battery statute in United States v.
Jones, 235 F.3d 342 (7th Cir. 2000), for the broad proposition
that, where the charging documents use "boilerplate" language to
allege an assault and battery under Massachusetts law, a sentencing
court may not use that prior conviction to enhance a sentence. In
Jones, the Seventh Circuit reviewed the charging document for the
defendant's predicate assault and battery conviction, which stated
that the defendant "did assault and beat" the victim. Id. at 347.
The court concluded that "no inference regarding whether [the
defendant] committed a crime of violence can be drawn from the
charging document's use of [that boilerplate] phrase." Id. More
importantly, the court was specifically troubled by evidence
adduced at sentencing that the defendant did not physically assault
the victim but instead was merely stopping her from hitting him.
Id. at 347-48. Given contested factual issues "that required the
district court to make choices about which evidence to believe and
what inferences to draw," the Jones court held that the district
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court erred in ruling that the defendant's predicate conviction for
assault and battery was a crime of violence under § 4B1.2. Id. at
348.
We do not agree with the Seventh Circuit's basic premise
that "boilerplate language" alleging an assault and battery under
Massachusetts criminal law is insufficient to deem a subsequent
conviction a crime of violence under § 4B1.2. In any event and in
contrast to Jones, the charging documents here alleged that Santos
not only committed an assault and battery, but that he did so, at
least with one of the victims, with a dangerous weapon. Where the
charging instruments are instructive on the issue of whether a
predicate offense is a crime of violence, we need not look further.
See United States v. Damon, 127 F.3d 139, 145 (1st Cir. 1997).
Such is the case here, where the statutory definition and charging
documents established that the crime contemplated by both Santos
and the government in his guilty plea was not a mere "nonconsensual
touching," but a "physically harmful" or "potentially physically
harmful" one that qualifies as a crime of violence under § 4B1.2.
Furthermore, the Seventh Circuit's animating concern was absent
both here and in Mangos, where we discerned "nothing in the record
or the charging document" that suggested the defendant committed a
nonharmful type of assault and battery. 134 F.3d at 464.
Along the same lines, in Harris, we relied on the
charging documents and other uncontested allegations in concluding
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that the defendant's two prior assault and battery convictions
qualified as "violent felonies" for armed career criminal status.
964 F.2d at 1236-37. In addition to the "boilerplate" language in
the charges, the "case file reflect[ed]" with respect to both
convictions that the defendant was armed with a knife as he
assaulted and beat his victim. Id. at 1237. These two items were
sufficient for us to conclude that the government "charged [the
defendant] with, and that he pled guilty to, the harmful type of
assault and battery against [the victim]." Id. Here, the district
court properly looked no further than the charging documents to
conclude the same for Santos's predicate assault and battery
conviction.
Accordingly, we affirm the sentence.
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