United States v. Dancy

United States Court of Appeals
For the First Circuit

No. 09-2628

UNITED STATES,

Appellee,

v.

WILLIE DANCY,

Defendant, Appellant.

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

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

Charles W. Rankin, with whom Michelle Menken and Rankin &
Sultan were on brief, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

April 13, 2011

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 LYNCH, Chief Judge. Willie Dancy, convicted of being a

felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and

sentenced to fifteen years (180 months) of imprisonment under the

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

serious challenges to both his conviction and his sentence.

As to his conviction, Dancy argues that the firearm and

related evidence should have been suppressed, that other evidence

was inadmissible and prejudicial, that he was entitled to a

mistrial based on the government's closing argument, and that the

jury instruction on what constitutes a "firearm" was in error and

violated the Second Amendment.

As to his sentence, Dancy argues the district court erred

in finding him to be an armed career criminal under the ACCA, as

recommended in the Presentence Report (PSR), and sentencing him to

fifteen years' imprisonment, the statutory minimum under the ACCA.

Based on the Supreme Court's decisions under the ACCA in Begay v.

United States, 553 U.S. 137 (2008), and Johnson v. United States,

130 S. Ct. 1265 (2010), and on our recent decision in United States

v. Holloway, 630 F.3d 252 (1st Cir. 2011), he argues we should

change prior circuit law. He argues that his prior state

convictions for assault and battery on a police officer (ABPO) and

for assault and battery with a dangerous weapon (ABDW) could have

been based on merely reckless actions, that this is the dispositive

consideration under the ACCA, and that the district court erred in

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finding these were valid predicate offenses rendering him an armed

career criminal.

We affirm both the conviction and the sentence.

I. BACKGROUND

A. The Gun Possession Crime

We summarize the facts as found by the district court in

its denial of Dancy's motion to suppress, United States v. Dancy,

No. 04-CR-10387, 2007 WL 2789279 (D. Mass. Sept. 25, 2007), which

are consistent with record support and are not clearly erroneous.

See United States v. Dubose, 579 F.3d 117, 120 (1st Cir. 2009). We

supplement that description with testimony from the record. Dancy

does not argue that any of the district court's basic factual

findings were clearly erroneous.

The investigating officers testified at the suppression

hearing as follows. On December 8, 2004, just after 9 PM, Brockton

Police Detective Mark Reardon, driving in an unmarked patrol car

through a high-crime area in Brockton, Massachusetts, saw four men

milling about a new Mercedes at a gas station. Suspecting the men

were involved in drug sales, he began to run the car's license

number while circling his car back around toward the gas station.

Reardon observed a black man holding a "full-size, large-frame

semiautomatic" run past Reardon's car in the opposite direction,

aiming the gun toward the Mercedes. Dancy, 2007 WL 2789279, at *1.

Reardon testified that when the Mercedes sped away, the man raised

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the gun and fired a shot into the air, then jogged away toward an

alleyway.

Reardon radioed for assistance, reporting that shots had

been fired. "He described the shooter as a black male with a

cornrow hairstyle, dressed in a gray hooded sweatshirt with

lettering and dark blue jeans. Reardon also stated that the man

resembled David Taylor, an individual well known to Brockton

police."1 Id. Still driving in the opposite direction, Reardon

lost sight of the shooter. Based on the time of night and the path

the shooter took, Reardon thought the most feasible place for the

shooter to go was Boomer's, "a notorious drinking establishment"

with a reputation for lawlessness. Id. Boomer's was one block

from the intersection where the shooting took place and was "one of

the few places in the neighborhood that was open at that time of

night." Id. Reardon pulled his car around so that he could see

both the street behind Boomer's2 and Main Street, in case he was

wrong and the shooter had run up that street instead.

A Massachusetts State Police anti-gang unit quickly

joined Reardon: Brockton Police Officers Thomas Hyland and Michael

Cesarini, and State Police Sergeant Mark Kiley and Trooper Frank

1
Reardon testified that he did not actually think that
Taylor was the shooter, but mentioned the resemblance in order to
improve the description for other officers who knew Taylor.
2
Reardon testified that he could not see the actual rear
door to Boomer's because of a picket fence in the way.

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Walls. Reardon was in plainclothes, Kiley and Walls were in state

police sweatshirts or jackets with their badges and guns visible,

and Hyland and Cesarini were in uniform. Walls, followed by Hyland

and Kiley, entered through the bar's rear entrance, while at the

same time Reardon and Cesarini entered through the front.

Trooper Walls was familiar with David Taylor and his

appearance. As soon as Walls entered the bar, he spotted a man who

"strongly resembled" Reardon's radioed description. Id. at *2.

This man was Dancy. In addition to the hooded gray sweatshirt and

jeans, Dancy was also wearing a leather jacket. Although Walls and

Hyland testified that the jacket was open in the front so that the

sweatshirt was still visible, the district court found that the

jacket hid the sweatshirt. See id. at *2 & n.2.

Walls moved toward Dancy, who made eye contact with him.

Dancy quickly turned, "thrust his hand into the right pocket of the

jacket," and started to move away toward the front entrance. Id.

at *2. In light of Dancy's matching the description of the street

shooter and that movement, Walls interpreted Dancy's movement as

meaning (correctly it turned out) that Dancy had a loaded gun in

his pocket. This, Walls concluded, posed a risk to the police.

Walls decided that if Dancy did have a gun, the only way to keep

the situation under control was to grab the gun while it was still

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in Dancy's pocket, and to keep Dancy or any bystander from removing

it from the pocket.3

In response to Dancy's apparent move for a gun, Walls

grabbed Dancy's arm and his jacket pocket. Feeling a gun in the

pocket, Walls yelled "gun" several times to alert the other

officers. Dancy replied, "Get off me, bitch, I ain't got no gun,"

and Dancy and Walls struggled. Id. Hyland tried to help Walls.

Dancy momentarily broke free and attempted to hand all or

part of a .22 caliber revolver to a bystander, who refused to take

it. Dancy then dropped the object to the floor. Cesarini sprayed

Dancy in the face with pepper spray and Hyland and Walls wrestled

Dancy to the ground and subdued him. Hyland or Kiley immediately

retrieved the cylinder of the gun from the floor;4 the cylinder

contained a round of ammunition. A second cartridge was found in

3
When defense counsel asked Walls why he didn't just pull
the gun out of Dancy's pocket himself, Walls replied, "It's far
more dangerous if you take it out, because I'm--he's still fighting
me. I am still struggling with him. I want it in that pocket,
contained with my hand on it, because that's the safest location
. . . . If it comes out, who knows what happens then."
4
During the suppression hearings, Trooper Walls testified
that the revolver frame stayed in Dancy's pocket during the entire
struggle, and both Officer Cesarini and Officer Hyland testified
that it was ultimately recovered from Dancy's pocket rather than
the floor, but the district court apparently found that the account
in Officer Hyland's written report that he picked all of the pieces
up off the floor was more consistent with the gun's broken
condition. United States v. Dancy, No. 04-CR-10387, 2007 WL
2789279, at *2 n.4 (D. Mass. Sept. 25, 2007).

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Dancy's jacket pocket. The pin that locked the cylinder into the

gun's frame was never found.

Before Cesarini reached the fray, he saw another man push

a 9-millimeter semi-automatic pistol under one of the pool tables.

Cesarini ordered the man, Kevin Jones, to drop to the floor. Jones

kicked the pistol farther under the table. Cesarini and Reardon

subdued and arrested Jones and secured the pistol, a 9-millimeter

Smith & Wesson, which was loaded with four bullets. A spent casing

that a ballistics expert matched to the gun was found just outside

the bar. After Jones and Dancy were arrested, Reardon confirmed

that Dancy was the street shooter he had observed fire into the

air.

While Dancy and Jones were held in adjacent cells at the

Brockton Police headquarters, State Trooper Erik Telford overheard

the two talking. Jones said to Dancy,

"Yo Will, you know the Smith & Wesson don't take no
prints." Jones continued: "Will, I'm getting charged
with the big one and you're getting charged with the
little one . . . ." Dancy replied: "I know . . . and you
think it's my fault because I had to go do that shit[.]"

Id. at *2 (alteration and omissions in original). These statements

were admitted into evidence.

B. Proceedings in the District Court

Dancy was charged under 18 U.S.C. § 922(g)(1), for the

gun and ammunition that were in his jacket pocket, on one count of

possessing a firearm and ammunition after having previously been

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convicted of a felony. He was not charged with being the street

shooter seen by Reardon or with possession of the 9-millimeter gun,

the gun more likely used in the street shooting. Dancy moved to

suppress the evidence of the .22 caliber gun and ammunition, as

well as the statements he made in the Brockton Police holding cell

that Trooper Telford overheard.

The district court denied the motion to suppress, finding

that while Trooper Walls's seizure of Dancy was an arrest,

Reardon's and Walls's collective observations and knowledge were

sufficient to establish probable cause for the arrest. Id. at *3.

The court found that probable cause was strongly supported by

Reardon's thorough physical description of the person he personally

observed firing a gun unlawfully into the air, the officers'

"almost immediate apprehension" of Dancy following that shooting,

Dancy's immediate attempt to evade the officers, and Dancy's

"furtive" motion toward his pocket that "Trooper Walls reasonably

interpreted as threatening." Id.

The court found in the alternative that the officers had

reasonable suspicion justifying an investigative stop of Dancy, and

that their discovery of the gun during that stop provided probable

cause for the arrest. Id. at *4. Further, the court held that

"even if the initial seizure of Dancy . . . was unjustified,

Dancy's forcible resistance to the arrest would have been an

intervening act sufficient to break the chain of causation and

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dissipate the taint of any illegality, thereby giving the officers

fresh grounds for an arrest." Id.

Dancy was convicted after a jury trial. The PSR listed

five prior state convictions as qualifying predicate offenses under

the ACCA. Dancy disputed that he had the requisite three predicate

offenses. He had twice pled guilty to drug charges; he originally

disputed that he was convicted on these charges but now concedes

that both are proper ACCA predicates. He also had two sets of

convictions for ABPO and ABDW. He had pled guilty to both ABPO and

ABDW for each offense. At his federal sentencing Dancy objected

that these two offenses should be counted as only one offense

because, although the charges stemmed from two separate arrests two

months apart, they were consolidated for sentencing by the state

court. Finally, a set of state drug charges had been disposed of

as "guilty filed," a disposition Dancy argued did not constitute a

conviction under Massachusetts law. The district court found that

Dancy qualified as an armed career criminal under the ACCA and

sentenced him to the statutory minimum of fifteen years'

imprisonment. This was a downward departure, to which the

prosecution agreed, from the guideline range of 235 to 293 months.

II. CHALLENGES TO THE CONVICTION

A. Motion to Suppress

In reviewing a motion to suppress, we review de novo the

district court's legal determinations, including the ultimate

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probable cause and reasonable suspicion determinations, and review

for clear error its findings of fact and credibility

determinations. See United States v. Battle, No. 10-1058, 2011 WL

724735, at *2 (1st Cir. Mar. 3, 2011); see also Ornelas v. United

States, 517 U.S. 690, 699 (1996). We "construe the record in the

light most favorable to the district court's ruling," United States

v. Cook, 277 F.3d 82, 84 (1st Cir. 2002), and we "will uphold the

denial of a motion to suppress as long as any reasonable view of

the evidence supports it," Battle, 2011 WL 724735, at *2.

While officers must have probable cause in order to

arrest, the Supreme Court established in Terry v. Ohio, 392 U.S. 1

(1968), and its progeny that "the police can stop and briefly

detain a person for investigative purposes even if the officer

lacks probable cause if the officer has reasonable suspicion

supported by articulable facts that 'criminal activity may be

afoot.'" United States v. Ramos, 629 F.3d 60, 65 (1st Cir. 2010)

(citation omitted) (quoting Terry, 392 U.S. at 30). Both the

initial seizure and the actions the police take thereafter must be

reasonable. Id. A Terry stop may lead to probable cause for

arrest when "the circumstances giving rise to reasonable suspicion"

are combined with "the developments that unfold[] during the Terry

stop." United States v. Lee, 317 F.3d 26, 32 (1st Cir. 2003).

Dancy argues that the motion to suppress should have been

granted based on the district court's primary conclusion "that

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Trooper Walls's attempt to physically restrain Dancy was a seizure

tantamount to a formal arrest." Dancy, 2007 WL 2789279, at *3. He

argues that probable cause is necessary for arrest and that the

officers had no probable cause when Walls first attempted to

physically restrain Dancy. Alternatively, Dancy argues that even

if there was reasonable suspicion to support an investigative stop,

there was never reason to frisk him for weapons.

We agree with the district court that the record presents

an escalating series of events in which each step taken by the

officers and Dancy led reasonably to the next. From the

"reasonably thorough physical description" of the street shooter

and his clothing,5 the likelihood the shooter had gone into the

bar, the "almost immediate apprehension (within three to five

minutes of Reardon's initial observations)," and the obvious effort

Dancy made to move away from Walls, Walls had ample reasonable

suspicion to stop Dancy and investigate further. Id. In light of

those background facts, we also agree with the district court that

when Dancy put his hand in his pocket in a way which suggested to

an experienced officer that Dancy was putting his hand on a gun,

Walls had even more reason to stop and investigate Dancy, including

5
Walls's suspicion that Dancy was the shooter Reardon had
described was not made less reasonable by the fact that Dancy was
wearing a leather jacket atop the other clothes Reardon had
mentioned. As Reardon explained on cross-examination, it would
have been logical for Dancy, who had just fired a gun in a public
intersection, to want to alter the clothing he was wearing in case
observers called the police and described what they had seen.

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through a pat frisk in order to see if there was a weapon that

could pose a risk to the officers. See id.

We reject Dancy's contention that the officers were

required to investigate more before they could frisk him for

weapons. "Officers are permitted to take actions to protect their

own safety and the safety of others in the area," including

conducting a pat-frisk if under all the circumstances they have "a

particularized and objective basis to suspect the individual ha[s]

a weapon." United States v. Mohamed, 630 F.3d 1, 6 (1st Cir.

2010); see also Estrada v. Rhode Island, 594 F.3d 56, 66 (1st Cir.

2010). Officer Walls had a particular, objective reason to suspect

that Dancy was armed and involved in criminal activity.

It was when Walls felt what he knew to be a firearm in

Dancy's pocket that he yelled "gun" several times and struggled

with Dancy until Dancy was subdued and on the ground. Even if

Walls's first contact with Dancy was a momentary "seizure" of Dancy

and the gun in his pocket, it was Dancy who then escalated and

prolonged the interaction by resisting Walls's attempts to secure

the weapon. Dancy's attempt to take the gun out of his pocket and

hand it off rather than give it to the police certainly justified

the police in subduing him, placing him formally under arrest, and

retrieving the gun parts from the floor.

Little is to be gained by parsing this rapid sequence of

events frame by frame. From the start there was reasonable

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suspicion under Terry justifying an investigative search, and there

were particularized and objective reasons to believe Dancy was

armed, justifying a frisk for weapons. See generally Mohamed, 630

F.3d at 5-6 (finding officer had reasonable suspicion that

individual, apprehended a few minutes after a shooting, was the

shooter--despite small disparities between individual's and

shooter's reported clothing--and that pat-frisk for weapons was

reasonable). By the end there was more than ample probable cause

to have seized the .22 caliber revolver and to have arrested Dancy.

B. Other Arguments

We briefly address the five other arguments Dancy makes

challenging his conviction.

Three of Dancy's claims challenge the admission of

certain evidence. First, he argues for the first time on appeal

that testimony and other evidence relating to uncharged misconduct,

that is, the shooting that set off the chain of events leading to

his arrest, was irrelevant to the actual charged offense and

deprived him of a fair trial by focusing a significant portion of

the trial on what he characterizes as mere propensity evidence.

Second, he argues to us, also for the first time on appeal, that

expert testimony that the .22 revolver was a firearm under

Massachusetts law misled the jury as to its obligation to apply the

federal statute. Third, Dancy argues, as he did in the district

court, that Officer Telford's testimony recounting part of the

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conversation he overheard between Jones and Dancy in the cell block

was improper hearsay evidence.

Dancy's fourth argument, which he also made to the

district court, is that the prosecutor's misstatement of the

evidence during her closing argument, which involved summarizing

more of the cell-block conversation overheard by Telford than had

actually been elicited from Telford during trial, required the

district court to grant his motion for a mistrial. We discuss

these four arguments together.

We review the two claims that Dancy has raised for the

first time on appeal for plain error, which requires that he make

a four-part showing. United States v. Olano, 507 U.S. 725, 732

(1993). There must be 1) error that 2) is "plain," meaning "clear"

or "obvious," id. at 733, that 3) was prejudicial, meaning that it

"affected the outcome of the district court proceedings," id. at

734, and 4) "seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings," with the fourth element within

the appellate court's discretion to require, id. at 736 (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)) (internal

quotation marks omitted). See also United States v. Kinsella, 622

F.3d 75, 83 (1st Cir. 2010).

We review Dancy's preserved claim as to Telford's

testimony for abuse of discretion. United States v. McElroy, 587

F.3d 73, 80 (1st Cir. 2009). Any error is harmless if the

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government shows it is "highly probable that the error did not

influence the verdict." United States v. Flores-de-Jesús, 569 F.3d

8, 27 (1st Cir. 2009) (quoting United States v. Casas, 356 F.3d

104, 121 (1st Cir. 2004)) (internal quotation marks omitted).

Finally, we also review the denial of Dancy's motion for a mistrial

on the grounds of prosecutorial misconduct for abuse of discretion.

United States v. Gentles, 619 F.3d 75, 81 (1st Cir. 2010). The

pertinent question is whether any prosecutorial misconduct "so

poisoned the well" that it likely affected the outcome of the

trial. United States v. Azubike, 504 F.3d 30, 39 (1st Cir. 2007).

Even if we were to assume error as to each of these four

claims, none of the thresholds described above for reversal is met,

because it is highly unlikely that any error affected the verdict.

The evidence that Dancy knowingly possessed the .22 revolver Walls

felt in Dancy's pocket is very strong, as our recitation of the

facts shows. That the gun fell to the ground when Dancy tried to

hand it off does not make his knowing possession any less, and

there is no support in the record for the theory the defense

presented at trial that the gun appeared on the floor from an

unknown source. None of the evidence of knowing possession is

undermined even if we assume all of Dancy's claims have merit, as

they all involve rather peripheral issues.

Trooper Telford's testimony recounting portions of the

cell-block conversation between Dancy and Jones was admitted on a

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theory of adoptive admission. See United States v. Miller, 478

F.3d 48, 51 (1st Cir. 2007). The prosecution argues to us, as it

did to the district court, that the testimony was also admissible

on a theory that Jones's statements were reciprocal and integrated

utterances providing context for Dancy's statement. See United

States v. Colón-Díaz, 521 F.3d 29, 38 (1st Cir. 2008). At trial

only two of the three admitted statements were elicited before the

jury. Telford testified to Jones's statement, "The Smith and

Wesson don't hold no prints," but not to his subsequent statement,

"Will, I'm getting charged with the big one and you're getting

charged with the little one . . . ." Telford also testified to

hearing Dancy's statement in response, "I know, I feel you, and you

think it's my fault because I had to go and do that shit. . . ."

It is unclear why only these two portions of the conversation were

offered.

Dancy argues that Jones's statement, "The Smith & Wesson

don't hold no prints," was likely interpreted by the jury to refer

to the uncharged shooting offense and "suggested, improperly, some

consciousness of guilt on Dancy's part." We cannot say it was an

abuse of discretion to admit Jones's statements, as they could be

interpreted as referring to the Boomer's encounter rather than to

the street shooting. Because the comments were ambiguous, it is

also highly improbable that they had any influence on the jury's

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evaluation of the evidence as to the charged offense. See Flores-

de-Jesús, 569 F.3d at 27.

Dancy's other claims of error are on matters even more

tangential. The prosecutor's mistaken reference during closing

arguments to the second statement Telford overheard, which was

admitted before trial but not elicited before the jury, was

isolated and apparently accidental. See Gentles, 619 F.3d at 81.

Further, it was followed by strong curative instructions to the

jury stating not only that lawyers' arguments are not evidence, but

also that Telford's testimony had not included that statement. See

id. at 81-82. Under these circumstances, it is not "likely that

any prejudice surviving the instruction could have affected the

outcome of the case." Id. at 82 (quoting Azubike, 504 F.3d at 39).

Similarly, Dancy's unpreserved objections to the

admission of the evidence on the uncharged shooting and the

concededly irrelevant testimony on the state law definition of

"firearm," where the jury was clearly instructed on the federal

definition, address issues that do nothing to undermine the

government's case that he knowingly possessed a firearm as

federally defined. Any error did not affect the outcome of Dancy's

case. Kinsella, 622 F.3d at 83.

Finally, we reject Dancy's fifth argument, presented for

the first time on appeal, that this court's interpretation of

language in the federal definition of "firearm" in 18 U.S.C.

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§ 921(a)(3) to include inoperable guns is unconstitutional under

District of Columbia v. Heller, 554 U.S. 570 (2008). See 18 U.S.C.

§ 921(a)(3) ("The term 'firearm' means (A) any weapon . . . which

will or is designed to or may readily be converted to expel a

projectile by the action of an explosive . . . ."); United States

v. Ford, 548 F.3d 1, 7 (1st Cir. 2008) (holding that as long as the

gun is real, it need not be loaded or operable at the time to be a

firearm). Nothing in Heller purports to narrow the scope of what

may be considered a firearm. In any event, all that was necessary

to fire the .22 caliber gun was to replace the cylinder, which must

always be removed in order to load the gun with ammunition. The

gun could be fired without the missing cylinder pin, either by

substituting a nail for the pin or by holding the cylinder in place

manually.

III. CHALLENGES TO THE SENTENCE

The court agreed with defense counsel that while Dancy,

from age seventeen, had a "bad record," the court had seen "really

bad records" comparatively, and Dancy's record was of picking "very

low hanging fruit." Indeed, the court noted that in most instances

Dancy had hurt himself, rather than others. For that reason, the

court departed downward from the guideline range of 235 to 293

months, concluding that "180 months is certainly sufficient,

perhaps even more than sufficient, but it's the minimum sentence I

can impose."

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 That minimum sentence resulted from the court's finding

that Dancy had committed at least three state offenses which

qualified as ACCA predicate offenses. See 18 U.S.C. § 924(e)(1)

("[A] person who violates section 922(g) of this title and has

three previous convictions . . . for a violent felony or a serious

drug offense . . . shall be . . . imprisoned not less than fifteen

years . . . ."). Dancy concedes he has two qualifying predicate

drug offenses. The government concedes that one offense--a "guilty

filed" state outcome--does not qualify because it is not clear that

there was an actual conviction on the available facts. The

question then boils down to whether Dancy's remaining Massachusetts

convictions for either ABPO or ABDW qualify under the force or the

residual clauses of the ACCA, described below.

A. Standard of Review

The ultimate question of law--whether a prior conviction

qualifies as a predicate offense under the ACCA--is reviewed de

novo. United States v. Pakala, 568 F.3d 47, 54 (1st Cir. 2009).

However, there is a preliminary question of the standard of overall

appellate review, as Dancy did not argue until a late round of

supplemental briefing following our Holloway opinion that these

prior offenses were not ACCA predicates under the Supreme Court's

Begay and Johnson decisions. Begay was decided before Dancy's

sentencing, and Johnson was decided after sentencing but months

before he filed his opening brief in this court. The government

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argues that Dancy's claim is waived or, at the very least,

forfeited and reviewable only for plain error. See Igartúa v.

United States, 626 F.3d 592, 603 (1st Cir. 2010) (explaining

consequences of waiver and forfeiture).

Given that before our opinion in Holloway Dancy could

understandably have assumed that our precedents holding that

Massachusetts ABPO and ABDW convictions are ACCA predicates were

not subject to question, see United States v. Am, 564 F.3d 25 (1st

Cir. 2009) (ABDW); United States v. Fernandez, 121 F.3d 777 (1st

Cir. 1997) (ABPO), he has not waived (that is, knowingly given up)

his arguments. He has, however, forfeited them by not raising them

before the district court when he could have, and so we review the

district court's decision for plain error. See Johnson v. United

States, 520 U.S. 461, 467-68 (1997) (plain error standard applies

where settled law changes between trial and appeal and issue was

not raised in district court); United States v. Barone, 114 F.3d

1284, 1294 (1st Cir. 1997) (same).

As we explain below, we conclude under the first part of

the plain error test that there was no error of law in the district

court's finding that Dancy's ABPO convictions qualified as ACCA

predicates. This also means the outcome of this case would not be

different even if the issues had been raised before the sentencing

court.

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B. Legal Background under the ACCA

ACCA predicate offenses include certain drug offenses and

"violent felon[ies]," defined as:

any crime punishable by imprisonment for a term exceeding
one year . . . that--
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another.

18 U.S.C. § 924(e)(2)(B)(i) and (ii). The Massachusetts ABPO and

ABDW crimes are punishable by terms of imprisonment of more than

one year, Mass. Gen. Laws ch. 265, § 13D (setting two-and-one-half-

year maximum term for assault and battery on a public employee,

which includes ABPO); § 15A(b) (setting ten-year maximum term for

ABDW).6 In the ACCA sentencing statute, "[c]lause (i) is sometimes

referred to as the 'force clause.' The portion of clause (ii)

following the enumerated offenses is known as the 'residual

clause.'"7 Holloway, 630 F.3d at 256 (citations omitted).

The inquiry under the ACCA is whether the state's legal

definition of the offense of conviction fulfills either clause of

6
The ACCA further provides that "any State offenses
classified by the laws of the State as a misdemeanor and punishable
by a term of imprisonment of two years or less" are not "crime[s]
punishable by imprisonment for a term exceeding one year." 18
U.S.C. § 921(a)(20). This limitation does not apply here.
7
Johnson was decided under the force clause, Johnson v.
United States, 130 S. Ct. 1265, 1268 (2010); Begay under the
residual clause, Begay v. United States, 553 U.S. 137, 140 (2008).

-21-
the ACCA's definition of a violent felony. We take a categorical

approach, meaning that we "consider only the offense's legal

definition" under state law, "forgoing any inquiry into how the

defendant may have committed the offense." Id.; see also Taylor v.

United States, 495 U.S. 575, 600 (1990). Under the Supreme Court's

decision in Shepard v. United States, 544 U.S. 13 (2005), if the

state statute encompasses multiple offenses, one or more of which

are not ACCA predicates, "a court may look to a restricted set of

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

ascertain which of the multiple offenses served as the offense of

conviction."8 Holloway, 630 F.3d at 256-57; see generally Nijhawan

v. Holder, 129 S. Ct. 2294, 2299 (2009) (explaining the categorical

approach).

Under Begay, to qualify under the ACCA residual clause,

the offense must both (1) pose a degree of risk that is similar to

the degree of risk posed by the enumerated offenses, and (2) be

roughly similar in kind to the enumerated crimes. United States v.

Almenas, 553 F.3d 27, 34 (1st Cir. 2009). An offense is similar in

kind if it "typically involve[s]" purposeful, violent, and

aggressive conduct. Begay, 553 U.S. at 144-45. The degree of risk

8
A plurality of the Court found that this was necessary to
prevent federal courts from finding disputed facts about the nature
of prior convictions, a practice that would raise questions under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United
States, 526 U.S. 227 (1999). See Shepard v. United States, 544
U.S. 13, 24-26 (2005) (plurality opinion).

-22-
and likeness inquiries are questions of federal law. See United

States v. Giggey, 551 F.3d 27, 39 (1st Cir. 2008) (en banc).

In 1997, before the Supreme Court's decisions in Begay

and Johnson, we held that the Massachusetts crime of ABPO was

categorically a "crime of violence" under the residual clause of

the career offender Guideline.9 Fernandez, 121 F.3d at 780. Our

precedents also hold that ABDW is categorically a violent felony.

See Am, 564 F.3d at 33 (holding ABDW is ACCA predicate under force

9
We have held that "the terms 'crime of violence' under
the career offender Guideline and 'violent felony' under the ACCA
are nearly identical in meaning, so that decisions construing one
term inform the construction of the other." United States v.
Willings, 588 F.3d 56, 58 n.2 (1st Cir. 2009). In United States v.
Giggey, 551 F.3d 27, 36 (1st Cir. 2008) (en banc), we acknowledged
that the difference between the ACCA's enumeration of "burglary"
and the career offender Guideline's enumeration of the narrower
"burglary of a dwelling" affected the interpretation of the
Guideline's residual clause.
Dancy attempts to expand on Giggey, arguing that because
an application note to the Guideline expressly lists several
additional offenses, including "aggravated assault," as crimes of
violence, we cannot import into the ACCA context the analysis from
any case holding that a type of assault qualifies as a crime of
violence under the Guideline.
Our opinion in Fernandez did not rely on or even mention
the application notes. Nor is the ABPO crime an aggravated assault
under Massachusetts law. See Commonwealth v. Correia, 737 N.E.2d
1264, 1266 (Mass. App. Ct. 2000) (stating that assault and battery
(AB) on a public employee is a codification of the common law crime
of simple AB, with additional elements related to the employee's
status and engagement in performing official duties). The
Massachusetts AB and ABDW statutes list separate simple and
aggravated offenses, though it is the courts and not the statutes
that supply the "aggravated" title. Compare Mass. Gen. Laws ch.
265, § 13A(a) (simple AB), with id. § 13A(b) (aggravated assault);
compare id. § 15A(b) (simple ABDW), with id. § 15A(c) (aggravated
ABDW); see also Commonwealth v. Assaf, No. 07-1337, 2009 WL
1616750, at *1 (Mass. App. Ct. June 11, 2009) (distinguishing
between statutes for simple and aggravated assault and battery).

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clause); United States v. Glover, 558 F.3d 71, 82 (1st Cir. 2009)

(holding ABDW is crime of violence under career offender

Guideline's residual clause). Dancy challenges the vitality of all

of these precedents.

C. Analysis under the ACCA

Underlying Dancy's arguments as to both state crimes are

several general propositions. First, federal courts sentencing

under the ACCA must look to how state law defines the elements of

state crimes, including decisions by the state's highest court

interpreting statutory language and common law definitions. See

Johnson, 130 S. Ct. 1269 (federal courts are bound by state high

courts' interpretations of state law, including state statutes).

Second, under Johnson, if that state law crime uses

alternative elements or definitions to criminalize more than one

type of conduct, so that it encompasses some conduct within the

ACCA and some not, and the defendant's conviction does not on its

face explain which type is involved, then the mere fact of the

defendant's conviction does not meet the government's burden of

showing that the conviction qualifies under the ACCA. Holloway,

630 F.3d at 259.

Third, we held in Holloway that because Massachusetts law

allows a conviction for simple assault and battery (AB) on a

recklessness theory, without requiring purposeful or intentional

conduct, the mere fact of indictment and conviction for simple AB

-24-
does not meet the government's burden to show that a defendant's

simple AB conviction qualifies under either the residual or the

force clause.10 Id. at 262. This is because reckless simple AB

does not meet Begay's requirement that under the residual clause an

offense must "typically involve purposeful . . . conduct." Begay,

553 U.S. at 144-45.

From these propositions, Dancy argues that no

Massachusetts state conviction for any crime involving AB can

qualify under the ACCA on only the face of the conviction

regardless of whether those crimes also involve additional

elements.11 He argues that the key consideration is that all AB

crimes can be committed recklessly. See, e.g., Commonwealth v.

Correia, 737 N.E.2d 1264, 1266 (Mass. App. Ct. 2000) (AB on a

public employee); Commonwealth v. Burno, 487 N.E.2d 1366, 1368-69

(Mass. 1986) (ABDW). We disagree that this sole consideration is

dispositive of the ACCA question.

Holloway concerned only simple AB and not the two crimes

in question here. Each of these two crimes includes additional

10
The Holloway court remanded to allow the government to
try to prove, using Shepard-approved documents, that the defendants
had been convicted of crimes that qualified under either the
residual clause or the force clause. United States v. Holloway,
630 F.3d 252, 263 (1st Cir. 2011).
11
The PSR in Dancy's case, which the parties use as a
conclusive record of his prior convictions for present purposes,
determined from state court records that Dancy was convicted of
ABPO stemming from two separate altercations, with no other
details.

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elements that distinguish this case from Holloway. It is necessary

for us to discuss and resolve only the ABPO issue.12

We turn to the elements of the ABPO crime, as specified

in the state statutes that criminalize ABPO and set forth standard

charging language, and as interpreted by the Massachusetts courts.

The charge was apparently brought pursuant to Mass. Gen. Laws ch.

265, § 13D, which provides: "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 . . . ." This statute is separate and distinct

from the statute criminalizing simple AB. See Mass. Gen. Laws ch.

265, § 13A. The standard statutory charging language for ABPO

charges is: "That A.B. did assault and beat C.D., who was a police

officer of the (city of Boston) (or whatever the fact may be), and

who was also in the lawful discharge of his duties as such officer,

as said (defendant) well knew . . . ." Mass. Gen. Laws ch. 277,

§ 79.

Dancy is correct that a recklessness theory of liability

is available as to the action element of the state ABPO crime.

Commonwealth v. Zekirias, 819 N.E.2d 166, 168 (Mass. 2004)

12
The additional elements also distinguish this case from
those involving broad, general state statutes with recklessness
standards, such as reckless endangerment, see, e.g., United States
v. Lee, 612 F.3d 170, 197 (3d Cir. 2010), or involuntary
manslaughter, see, e.g., United States v. Woods, 576 F.3d 400, 410
(7th Cir. 2009).

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(describing jury instructions for "the offense of intentional or

reckless assault and battery on a public employee"); Correia, 737

N.E.2d at 1266 (holding that absent evidence that the legislature

intended the ABPO statute to have a different culpability standard

than the simple AB statute, recklessness was available). But it

does not follow that any crime that can be committed recklessly

must necessarily not be similar in kind to any of the ACCA

enumerated offenses. Under state law the ABPO crime has additional

elements that the simple AB crime does not: (1) the person

assaulted must be a police officer, (2) the officer must be engaged

in his or her official duties, and also (3) the defendant must know

the victim of the assault and battery is a police officer engaged

in performance of his or her duties. Mass. Gen. Laws ch. 277,

§ 79. These additional elements differentiate the mental state

required for the ABPO crime from those required for simple AB.13

They ensure that the conduct criminalized by the ABPO statute is

"purposeful," which is different from the mental state required by

the elements of the simple AB statute.

13
In fact, the Massachusetts state courts have expressly
recognized that simple AB is a lesser included offense within ABPO,
appropriate where the jury finds all of the elements of simple AB
but does not find that the defendant knew the victim was a police
officer engaged in his or her official duties at the time of the
assault. Commonwealth v. Francis, 511 N.E.2d 38, 41-42 (Mass. App.
Ct. 1987); Commonwealth v. Rosario, 430 N.E.2d 866, 866 (Mass. App.
Ct. 1982).

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 It is important that Begay specifically stated that the

enumerated offenses "typically" involve purposeful conduct, Begay,

553 U.S. at 144-45, and required only that an offense be "roughly

similar" in kind to the enumerated offenses in order to qualify

under the ACCA, id. at 143; see also Holloway, 630 F.3d at 261

(finding that reckless simple AB "does not typically involve

purposeful conduct"); Almenas, 553 F.3d at 35 n.9 (emphasizing

typicality requirement). This means we should not allow

hypothetical fact patterns to control our decision if they are

unlikely to occur during the typical interactions which result in

ABPO convictions. Indeed, the Massachusetts Supreme Judicial Court

has itself cabined the meaning of "recklessness" in the ABPO

context, vacating a judgment of reckless ABPO where court officers

were merely "hit in the forearm" as defendant "was wildly gesturing

his arms" because it was not clear that the jury had found the

defendant reckless rather than merely negligent. Zekirias, 819

N.E.2d at 167. It is also true that the adjectives, such as

"purposeful," that the Supreme Court used in Begay "denote

qualities that are ineluctably manifested in degree and appear in

different combinations; they are, therefore, imprecise aids."

United States v. Williams, 529 F.3d 1, 7 (1st Cir. 2008) (footnote

omitted).

The simple AB statute discussed in Holloway requires only

conduct "involv[ing] a high degree of likelihood that substantial

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harm will result to another," or involving "disregard of probable

harmful consequences to another." Holloway, 630 F.3d at 261

(quoting Commonwealth v. Welch, 450 N.E.2d 1100, 1102-03 (Mass.

App. Ct. 1983)). An AB conviction can arise from merely reckless

conduct involving great risk or disregard for consequences; no

additional statutory elements limit the factual circumstances in

which these requirements are met to situations that typically

involve purposeful conduct.14 The elements of the offense of simple

AB do not require any awareness of the victim, much less an

awareness that the victim is a law enforcement officer engaged in

the performance of official duties. See Welch, 450 N.E.2d at 1102-

03 (listing elements of reckless simple AB).

By contrast, ABPO arises only in a narrow set of

circumstances: an interaction between an individual and police

officers in which the individual knows that he or she confronts an

officer and that the officer is discharging his or her law

enforcement duties at the time of the confrontation. This is

ensured by the additional elements that the police officer "was

. . . in the lawful discharge of his [or her] duties as such

officer, as said (defendant) well knew." Mass. Gen. Laws ch. 277,

14
The recklessness theory of simple AB is limited to cases
in which the victim was actually injured, but this goes to the
effect of the defendant's actions, not to the defendant's mental
state. See Holloway, 630 F.3d at 261 (additional requirement under
recklessness theory is that "the victim suffered some physical
injury").

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§ 79 (emphasis added). By requiring proof that the defendant knew

these facts as to the victim's status, the additional elements also

require the prosecution to prove the defendant knew that there were

one or more victims who could be injured by the defendant's

actions, and yet nonetheless acted with "disregard of probable

harmful consequences" or in a way that created "a high degree of

likelihood [of] substantial harm" to a potential victim. See

Welch, 450 N.E.2d at 1102-03. That the defendant must also know

the potential victim's specific status as a police officer engaged

in official duties only heightens the level of knowledge, and thus

purposeful conduct, that must be present before a defendant can be

convicted of ABPO.

As a result, in the ABPO context purposeful conduct is

the norm, and what we said in Fernandez is still true: the crime of

ABPO "nearly always involves the intentional striking of a police

officer." Fernandez, 121 F.3d at 780. "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."

Id. The Massachusetts Appeals Court has recently ratified this

conclusion, noting that our statement in Fernandez that ABPO

requires purposeful conduct and knowledge as to the victim's

identity is different from "the concept that [the defendant]

intended the consequences of his action." Commonwealth v.

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Deschaine, 932 N.E.2d 854, 861 (Mass. App. Ct. 2010) (citing

Fernandez, 121 F.3d at 778).

Turning to the risk component of the residual clause,

what we said in Fernandez about the degree of risk involved in ABPO

also remains true. The ABPO crime "nearly always poses a serious

risk of actual or potential physical force and the likelihood of

physical injury. That law enforcement officers usually carry

weapons when on duty only heightens the serious risk of injury

associated with such an assault." Fernandez, 121 F.3d at 780.

While the primary risk of ABPO is to the officer who is

occupied with his or her duties to the public, there is also a

great risk to the defendant whose interference with the police is

likely to provoke a response of decisive force calibrated to end

the matter quickly and prevent the assailant from getting control

of the officer or his or her weapon or otherwise injuring the

officer or bystanders. See United States v. Williams, 559 F.3d

1143, 1149 (10th Cir. 2009). "[T]he use of force is an expected,

necessary part of a law enforcement officer's task of subduing and

securing individuals suspected of committing crimes." Lee v.

Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002). Police officers are

trained to "induce compliance" in people who "resist the officers'

efforts to bring [them] under control," and the techniques they may

legitimately use to do so may cause serious injury to the person

resisting. Jennings v. Jones, 587 F.3d 430, 441 (1st Cir. 2009)

-31-
(describing officer's use of "ankle turn control technique" taught

in police academy); see also Isom v. Town of Warren, 360 F.3d 7, 10

(1st Cir. 2004) (describing officers' use of pepper spray in

accordance with their training). In addition to risk to the

officers and to the assailant, the confrontation between the

officer and the assailant may put bystanders at risk of injury as

well.

Indeed we think the serious risk of injury is greater in

the ABPO situation than in several of the enumerated offenses. As

we have said of the Massachusetts crime of resisting arrest, the

crime involves "resisting the authority of a police officer, an

official charged with defending the public." Almenas, 553 F.3d at

34. Resisting arrest poses an arguably greater risk than the

enumerated offenses because the officer is "duty-bound to

effectuate the arrest," resulting in "a significant risk of

conflict and, concomitantly, a significant risk of injury." Id.

The same is true for ABPO, which involves similar dynamics.

This great risk of physical injury is present even if the

assault and battery on the officer in the enforcement of his or her

duties is recklessly done. And that risk is relevant to our

categorical analysis even if actual physical harm does not

materialize in a particular case. Williams, 559 F.3d at 1149

("[B]attery of an armed on-duty police officer is 'a powder keg,

which may or may not explode into violence and result in physical

-32-
injury to someone at any given time, but which always has the

serious potential to do so.'" (quoting United States v. West, 550

F.3d 952, 963 (10th Cir. 2008) (overruled on other grounds by

United States v. McConnell, 605 F.3d 822 (10th Cir. 2010))). It is

enough that the typical case of ABPO involves a serious risk of

injury: the residual clause "speaks in terms of a 'potential

risk,'" an "inherently probabilistic concept[]." James v. United

States, 550 U.S. 192, 207 (2007) (quoting 18 U.S.C.

§ 924(e)(2)(B)(ii)). It need not be the case that "every

conceivable factual offense covered by a statute must necessarily

present a serious potential risk of injury before the offense can

be deemed a violent felony." Id. at 208.

Because the Massachusetts crime of ABPO qualifies under

the residual clause of the ACCA, we do not reach the question of

whether it qualifies under the force clause.

Because Dancy has four qualified ACCA predicate offenses,

we do not reach the question of whether a conviction for ABDW is

itself a predicate offense.

The conviction and sentence are affirmed.

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