United States Court of Appeals
For the First Circuit
No. 07-2675
UNITED STATES OF AMERICA,
Appellee,
v.
PABLO RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, John R. Gibson,* and Howard,
Circuit Judges.
Martin J. Vogelbaum, with whom Charles P. McGinty and
Federal Defender Office, were on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.
March 30, 2009
*
Of the Eighth Circuit, sitting by designation.
HOWARD, Circuit Judge. This case presents a recurring
issue: whether, for purposes of sentencing a defendant under the
Armed Career Criminal Act (ACCA)1, the charging language "did
assault and beat" in a Massachusetts state court criminal complaint
establishes, in the absence of any other cognizable source of
information, that a defendant committed the type of assault and
battery under Massachusetts law that qualifies as a "violent
felony." See United States v. Holloway, 499 F.3d 114, 118 (1st
Cir. 2007); see also id. at 116, 118 (recognizing that, under
Massachusetts law, assault and battery may be of two separate
types, "offensive" and "harmful" assault and battery, and that the
latter type qualifies as a violent felony under the ACCA).
On four prior occasions we have determined that the "did
assault and beat" charging language suffices to identify the
"harmful" brand of assault and battery, qualifying the offense as
a violent felony under the ACCA or a "crime of violence" under the
career offender provision of the sentencing guidelines, U.S.S.G. §
4B1.1. Holloway, 499 F.3d at 118; United States v. Estevez, 419
F.3d 77, 82 (1st Cir. 2005); United States v. Santos, 363 F.3d 19,
24 (1st Cir. 2004); United States v. Mangos, 134 F.3d 460, 464
(1st Cir. 1998).2
1
18 U.S.C. § 924(e).
2
We have made clear that "the definitions of 'violent felony' in
the ACCA and 'crime of violence' in U.S.S.G. § 4B1.1 are
essentially the same, and that we may look to cases dealing with
-2-
On the basis of three prior Massachusetts assault and
battery convictions, the sentencing court in this case classified
the appellant, Pablo Rivera, as an armed career criminal under the
ACCA. The district court relied on "did assault and beat" charging
language in concluding that each of Rivera's three assault and
battery convictions was for the "harmful," violent type of assault
and battery.
In a familiar argument, Rivera says that this charging
language is mere statutory boilerplate and thus fails sufficiently
to establish that he was convicted of the violent type of assault
and battery on those three prior occasions. As the district court
recognized, we have rejected this precise argument on a number of
occasions, most recently in Holloway. Id. at 118; Santos, 419 F.3d
at 24. Nevertheless, on appeal Rivera seeks to distinguish this
case from the previous ones. He notes that, unlike the other
defendants, he presented to the district court affidavits from both
a current and retired clerk in the Massachusetts state court, each
of whom attested that the "did assault and beat" charging language
is used in all assault and battery cases regardless of which type
of assault and battery is being charged by the state.
Whatever evidentiary value these affidavits might have
in the district court under other circumstances, Rivera's argument
either to inform our categorical inquiry." Holloway, 499 F.3d at
188 (citations omitted).
-3-
to us is unavailing in light of binding precedent. Nothing in
those decisions appears to leave open the argument Rivera presents.
In fact, the opposite seems to be true. See Santos, 363 F.3d at 19
("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."). Moreover, Rivera
has failed to identify a fresh development in the law that would
allow us to disregard circuit precedent. See Holloway, 499 F.3d at
118.3
To be sure, classifying Rivera's three assault and
battery convictions as violent felonies under the ACCA has
significant sentencing consequences.4 But, if we choose to depart
from our previous position with respect to the charging language at
issue here, we must do so as an en banc court.
AFFIRMED.
3
Further, as we did in Holloway, Santos, and Mangos, we note that
nothing in the record here suggests that any of Rivera's three
convictions were for the "offensive" type of assault and battery.
See Holloway, 499 F.3d at 118 n.5; Santos, 363 F.3d at 24; Mangos,
134 F.3d at 464.
4
The classification of Rivera as an armed career criminal resulted
in a statutory mandatory minimum of 180 months to 210 months. The
district court sentenced Rivera to 180 months' imprisonment to be
followed by five years of supervised release.
-4-