United States v. Hudson

United States Court of Appeals
For the First Circuit

No. 14-2124

UNITED STATES OF AMERICA,

Appellee,

v.

JEROME HUDSON,

Defendant, Appellant.

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

[Hon. Jon D. Levy, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Stahl, Circuit Judges.

Jane Elizabeth Lee for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

May 9, 2016
 HOWARD, Chief Judge. Jerome Hudson pled guilty, without

a plea agreement, to possession of ammunition by a felon. See 18

U.S.C. § 922(g)(1). Based upon his criminal history he was

sentenced as an armed career criminal. See 18 U.S.C. § 924(e)(1).

On appeal, he claims error in his designation as an armed career

criminal and also in the calculation of his Guideline Sentencing

Range ("GSR"). We affirm Hudson's classification as an armed

career criminal. In light of the government's concession of error

in the calculation of Hudson's GSR, we vacate his sentence and

remand.

I. Facts1

At 7:50 in the morning on January 13, 2014, officers in

Lewiston, Maine responded to a reported shooting near an apartment

complex. Their investigation quickly identified Hudson -- who had

fled the scene -- as the perpetrator. The police learned through

witnesses that an altercation had occurred between Hudson and the

father of Hudson's girlfriend's children. That argument escalated

until Hudson fired a number of shots at the other man at "point

blank range." All of this took place as a number of school-aged

children began to come out of their homes to catch the school bus.2

1 Because Hudson pled guilty, we recite the facts as drawn
from the pre-sentence investigation report ("PSR"), change-of-plea
hearing, and sentencing transcript. See, e.g. United States v.
Rossignol, 780 F.3d 475, 476 (1st Cir. 2015).
2 During the change-of-plea colloquy, Hudson admitted to these
events sufficiently to support conviction, but he maintained that

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The police retrieved four spent shell casings from the scene and

made contact with Hudson's girlfriend at the apartment that he and

she shared. With her consent, the police searched the home and

located an open safe containing 35 rounds of 9mm ammunition, one

loose round of .45 caliber ammunition, and two loose rounds of

Winchester 9mm ammunition. Officers found Hudson hiding in a

stairwell a short distance away, and upon being apprehended he

stated "you guys have my ammo and that's all you're getting, you

won't find my gun." Hudson would later admit to firing the shots,

but claimed that he did so as a "warning" because the other man

was reaching for something in his waistband.

II. Procedural History

On April 4, 2014, a federal grand jury indicted Hudson

for possession of ammunition by a felon. The indictment included

notice that the government intended to classify Hudson as an armed

career criminal, specifying five separate prior Massachusetts

convictions.3 See 18 U.S.C. § 924(e). Prior to his October 14,

the shots were fired in the air and that there were no children
around.
3 The convictions were for:
 Assault and Battery
 Possession of Drugs with Intent to
Distribute
 Assault to Rob and Assault and Battery
with a Dangerous Weapon
 Unarmed Robbery

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2014 sentencing, Hudson objected to a recommendation in the PSR

that he be designated as an armed career criminal. At sentencing,

the court identified three of the five enumerated offenses as

qualifying convictions for violent crime under the Armed Career

Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and the sentencing judge

imposed a 216-month incarcerative term followed by 5 years of

supervised release.

One of the three predicate convictions on which the

district court relied was a 1997 conviction for larceny from a

person, see Mass. Gen. Laws ch. 266, § 25. But that offense had

qualified as a predicate under the residual clause of the ACCA, a

provision subsequently invalidated by the Supreme Court. See

Johnson v. United States (Johnson II), ___ U.S. ___, 135 S.Ct.

2551, 2557 (2015) (holding the residual clause of the ACCA

unconstitutionally vague). The government does not argue that the

larceny conviction would otherwise qualify as a predicate offense,

but rather seeks to substitute in its place a different

Massachusetts conviction for assault with a dangerous weapon

("ADW"). In this timely appeal, Hudson argues that both his ADW

conviction and a prior conviction for possession of drugs with

 Assault with a Dangerous Weapon and
Assault and Battery

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intent to distribute them do not qualify as predicate offenses

under the ACCA.4

III. Analysis

The ACCA requires the imposition of more severe

sentences on repeat offenders when they are convicted of certain

new crimes. See 18 U.S.C. § 924. In this case, if Hudson has

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

drug offense, or both," then a mandatory 15-year prison sentence

and other sentencing enhancements follow. Id. § 924(e)(1).

Whether a prior conviction qualifies as a "serious drug offense"

or a "violent felony" under the ACCA is a question of law, and

where, as here, the question is preserved, we undertake a de novo

review. See United States v. Holloway, 630 F.3d 252, 256 (1st

Cir. 2011); United States v. McKenney, 450 F.3d 39, 42 (1st Cir.

2006).

A. Possession with Intent to Distribute

The ACCA defines a "serious drug offense" as:

[A]n offense under State law, involving
manufacturing, distributing, or possessing
with intent to manufacture or distribute, a
controlled substance . . . for which a maximum
term of imprisonment of ten years or more is
prescribed by law[.]

4Hudson does not challenge the district court's inclusion of
his prior conviction for assault to rob as a qualifying predicate
offense under the ACCA.

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18 U.S.C. § 924(e)(2)(A)(ii). Hudson challenges the district

court's finding that a Massachusetts conviction for possession

with intent to distribute a "class B substance" qualifies as a

"serious drug offense."5

In arguing that this conviction does not qualify, Hudson

focuses on the bifurcated nature of the sentences provided for in

the state statute. See Mass. Gen. Laws ch. 94C, § 32A(a). That

statute, like many other felony statutes in Massachusetts,

provides for concurrent jurisdiction in the district and superior

courts. At the discretion of the district attorney, a defendant

(such as Hudson) charged with possession with intent to distribute

a class B substance may be prosecuted in either venue. If the

defendant's case remains in the district court, then the maximum

term of incarceration is two and one-half years in the house of

corrections; indictment and prosecution in the superior court

subjects a defendant to a maximum of ten years in state prison.

See id. Because he was prosecuted in the district court, Hudson

argues that he was not subject to a "maximum term of imprisonment

of ten years or more," as required by the ACCA. That claim,

however, is foreclosed by circuit precedent. In United States v.

Moore, we held that conviction under Mass. Gen. Laws ch. 94C,

5 Hudson's PSR specified that his possession with intent
conviction was for a class B substance. See Mass. Gen. Laws
ch. 94C, § 32A(a).

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§ 32A(a) qualifies as a "serious drug offense" irrespective of

which Massachusetts court entered the conviction. 286 F.3d 47,

48-50 (1st Cir. 2002)

When a claim runs headlong into circuit precedent, our

law of the circuit doctrine must be confronted. That doctrine

"dictates that '[i]n a multi-panel circuit . . . newly constituted

panels ordinarily are constrained by prior panel decisions

directly (or even closely) on point." Holloway, 630 F.3d at 258

(quoting United States v. Guzman, 419 F.3d 27, 31 (1st Cir. 2005)).

Absent special circumstances, we are duty bound to follow our prior

holding. See United States v. Chhien, 266 F.3d 1, 11 (1st Cir.

2001) (listing exceptions).

Hudson offers no new or previously unaddressed reason to

deviate from our prior holdings on the issue. He argues only that

the Supreme Court's decision in United States v. Rodriguez, 553

U.S. 377 (2008), represents a shift in authority that requires us

to revisit Moore. This argument is not a novel one; we have

already held that there is "nothing in the Supreme Court's

intervening decision in United States v. Rodriguez to require us

to revisit" our holding in Moore. United States v. Weekes, 611

F.3d 68, 72 (1st Cir. 2010) (citation omitted). Accordingly, a

Massachusetts conviction for possession with intent to distribute

a class B substance continues to qualify as a "serious drug

offense" under the ACCA.

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B. Assault with a Dangerous Weapon
The government maintains that Hudson's prior felony

conviction for Assault with a Dangerous Weapon, Mass. Gen. Laws

ch. 265, § 15B(b), also qualifies as a predicate "violent felony"

under the ACCA. See 18 U.S.C. § 924(e)(2)(B). Although the

ACCA's residual clause is no longer effective, the government

argues that a Massachusetts ADW conviction fits within the ACCA's

"force clause" (also referred to as the "elements clause").

The force clause requires that a qualifying conviction

stem from a crime punishable by more than one year in prison "that

has as an element the use, attempted use, or threatened use of

physical force against the person of another." Id. The Supreme

Court defines the phrase "physical force" within the context of

the force clause to "mean[s] violent force - that is, force capable

of causing physical pain or injury to another person." Johnson

v. United States (Johnson I), 559 U.S. 133, 140 (2010).

In determining whether a prior state conviction

qualifies as a violent felony under the ACCA, we apply the

"categorical approach, looking only to the statutory definitions

of the prior offenses, and not to the particular facts underlying

those convictions." Taylor v. United States, 495 U.S. 575, 600

(1990). We thus "may consider only the offense's legal

definition, foregoing any inquiry into how the defendant may have

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committed the offense." Holloway, 630 F.3d at 256 (citing Begay

v. United States, 553 U.S. 137, 141 (2008)).6

Massachusetts law provides that "[w]hoever, by means of

a dangerous weapon, commits an assault upon another shall be

punished . . . ." Mass. Gen. Laws ch. 265, § 15B(b). And we have

held that a Massachusetts ADW conviction qualifies as a predicate

offense under the force clause of the ACCA. See United States v.

Am, 564 F.3d 25, 33-34 (1st Cir. 2009). As noted earlier, however,

intervening authority, such as a Supreme Court decision, can

undermine a once well-settled holding. Hudson argues that

intervening authority renders Am unpersuasive and urges us to

undertake a new categorical analysis. He suggests two separate

reasons why his ADW conviction now falls outside the bounds of the

force clause: 1) because the statute lacks the necessary element

of "physical force," and 2) because the statute fails to require

a sufficient mens rea.

Hudson first argues that, because a Massachusetts ADW

constitutes an attempted or threatened battery, and because in

Massachusetts a battery can be committed with a "mere touching,

6 The government does not suggest that the statute of
conviction is divisible, see Descamps v. United States, ___ U.S.
___, 133 S. Ct. 2276, 2281, 2293 (2013), and consequently that
there is any need to examine so-called Shepard documents, see
Shepard v. United States, 544 U.S. 13, 26 (2005). Accordingly,
Hudson's claim will rise or fall on a categorical inquiry, rather
than on the modified categorical approach.

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however slight," United States v. Fish, 758 F.3d 1, 9 (1st Cir.

2014) (internal citation and quotation marks omitted), ADW

necessarily lacks the requisite level of physical force. The

argument thus identifies the combination of the Supreme Court's

decision in Johnson I (violent force required) and our observation

in Fish that battery may be accomplished by mere touching as

abrogating Am. We have already directly addressed and rejected

this same argument. See United States v. Whindleton, 797 F.3d

105, 115-16 (1st Cir. 2015) (holding that "ADW can be a violent

felony under the [f]orce [c]lause, even if simple assault is not,

by virtue of the additional dangerous-weapon element.").

The same law of the circuit principles that guide our

analysis with respect to the drug conviction apply equally to this

claim. Hudson points to no post-Whindleton authority that would

require us to revisit our prior holding, and we see no good reason

to do so. Thus, we reaffirm that a Massachusetts ADW conviction

meets the physical force requirement under the force clause of the

ACCA.

Hudson's second theory, which also relies on Fish, is

that his ADW conviction does not qualify as a predicate offense

because the Massachusetts ADW statute does not require a sufficient

mens rea. In Fish, we held that a prior Massachusetts conviction

for assault and battery with a dangerous weapon ("ABDW"), see Mass.

Gen. Laws ch. 265, § 15A(b), did not qualify as a "crime of

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violence" as defined in 18 U.S.C. § 16(b). See 758 F.3d at 17.

Fish's analysis applied the principles first espoused by the

Supreme Court in Leocal v. Ashcroft, 543 U.S. 1, 9-10 (2004),

wherein the Court held that "use" as contained within a similarly

worded federal statute7 requires "active employment" and thus does

not encompass crimes that may be committed with a mens rea of

negligence or less. Fish determined that, because a Massachusetts

ABDW can be committed with "the intentional commission of a

reckless act" it "falls short of the mens rea required" for use of

physical force. 758 F.3d at 16. Reasoning from Leocal, the

majority in Fish observed that "sister circuits have concluded .

. . that section 16(b) does not reach recklessness offenses," and

"[o]n the force of Leocal's logic, we hold the same." Id. at

9-10. Hudson seeks to apply Fish's mens rea analysis to disqualify

his ADW conviction.

In Whindleton we left open the question of whether, in

light of Fish, "ADW fails to qualify as a violent felony under the

ACCA because it lacks any requirement that the use or threat be

intentional." Whindleton, 797 F.3d at 116 n.12. We now conclude

that under Massachusetts decisional law an ADW conviction requires

7 Fish and Leocal dealt with the interpretation of 18 U.S.C.
§ 16. The Supreme Court has noted that section 16 is "very similar
to § 924(e)(2)(B)(i)." Johnson I, 559 U.S. at 140. To the extent
that Hudson relies on a section 16 analysis to inform his ACCA
claim, we assume without deciding that a similar bridge can be
built between the mens rea requirements of the two sections.

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that the use or threat of physical force be intentional.

Commonwealth v. Porro, 939 N.E.2d 1157, 1163-64 (Mass. 2010).

Thus, we hold that a conviction under Mass. Gen. Laws ch. 265,

§ 15B(b) includes a mens rea requirement sufficient to qualify the

conviction as a predicate under the ACCA's force clause.8

The Massachusetts cases observe that "an assault may be

perpetrated in either of two ways[:] the crime may consist of 'an

attempted battery' or 'an immediately threatened battery.'"

Commonwealth v. Melton, 763 N.E.2d 1092, 1096 (Mass. 2002) (quoting

Commonwealth v. Gorassi, 733 N.E.2d 106 (Mass. 2000)). For

convictions under either theory, proof of specific intent is

required. See e.g., Commonwealth v. Musgrave, 649 N.E.2d 784,

787-88 (Mass. App. Ct. 1995) aff'd 659 N.E.2d 284 (Mass. 1996).

8
Hudson's claim that ADW lacks a sufficient mens rea
requirement to qualify as a predicate offense is grounded in his
assertion that ADW is a general intent crime in Massachusetts.
That conclusion is based on a mistaken interpretation of dicta
contained within our decision in Am. At one point, Am refers to
ADW as a "general intent" crime, accompanied by a citation to
Commonwealth v. Ford, 677 N.E.3d 1149, 1151 (Mass. 1997). See Am,
564 F.3d at 34. Ford, however, dealt not with ADW, but with
assault and battery by means of a dangerous weapon, ABDW. See
Ford, 677 N.E.3d at 1151. To accept Hudson's reading of Am would
be to ignore our reasoning in that case accompanying the "general
intent" label. See Am, 564 F.3d at 33-34. Although ABDW may be
committed recklessly, we made clear in Am that ADW cannot be,
holding that "because the state . . . had to show Am acted
intentionally, his conviction for [ADW] thus constituted a 'crime
of violence' for purposes of career offender status." Id. at 34
(emphasis added); cf. Commonwealth v. Jones, 383 N.E.2d 527, 533
n.8 (Mass. 1978) (holding that "assault and battery by means of a
dangerous weapon is a crime requiring general intent." (citing
Commonwealth v. Randall, 4 Gray 36, 38-39 (Mass. 1855))).

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 Under the threatened battery variant, "conviction of

assault by means of a dangerous weapon requires proof of an overt

act undertaken with the intention of putting another person in

fear of bodily harm and reasonably calculated to do so, whether or

not the defendant actually intended to harm the victim."

Commonwealth v. Domingue, 470 N.E.2d 799, 802 (Mass. App. Ct.

1984). Thus, in order to meet its burden at trial, the

Commonwealth must show that "the defendant intended to place the

victim in fear of an imminent battery" with a dangerous weapon.

Porro, 939 N.E.2d at 1163. This intent requirement fits squarely

within the ACCA's definition of "threatened use" of physical force

as contemplated in 18 U.S.C. § 924(e)(2)(B)(i).

Similarly, "[u]nder the attempted battery theory, the

Commonwealth must prove that the defendant intended to commit a

battery, took some overt step toward accomplishing that intended

battery, and came reasonably close to doing so." Melton, 763

N.E.2d at 1096. It follows that "[a] defendant must intend a

battery to be guilty under the attempted battery theory." Porro,

939 N.E.2d at 1163. Thus, a conviction for ADW under this variant

necessarily entails the "attempted use . . . of physical force" as

required by 18 U.S.C. § 924(e)(2)(B)(i).

The cases also make clear that a mens rea of recklessness

is not enough to support an ADW conviction. ADW requires specific

intent, because "the central aspect of an assault is an attempted

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application of physical force or a threat of the use of physical

force, either by an attempt to do bodily harm, or by placing the

victim in fear of imminent bodily harm." Gorassi, 733 N.E.2d at

110. This framework, coupled with the "additional dangerous-

weapon element," Whindleton, 797 F.3d at 115, places a

Massachusetts ADW conviction within the language of §

924(e)(2)(B)(i). Accordingly, a Massachusetts ADW conviction

meets both the physical force and mens rea requirements necessary

to qualify as a predicate offense under the ACCA's force clause.

C. Sentencing Guidelines Calculation

The district court sentenced Hudson to an incarcerative

term of 216 months, within an advisory GSR of 188-235 months. As

previously discussed, however, after the sentencing in this case

was concluded, the Supreme Court decided Johnson II. The

government concedes that Johnson II's invalidation of the ACCA's

residual clause renders erroneous the sentencing court's

calculation of the applicable sentencing range. Despite this

concession, the government maintains that the sentence should

nevertheless be affirmed.

First, the government accepts that Johnson II's holding

that the ACCA's residual clause is unconstitutionally "vague in

all its applications," 135 S. Ct. at 2561, invalidates the district

court's application of United States Sentencing Guidelines

("USSG") §4B1.4(b)(3)(A) to set a Base Offense Level (BOL) of 34.

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That section of the armed career criminal guideline requires a

finding that a defendant "used or possessed the . . . ammunition

in connection with . . . a crime of violence." In turn, the

definition of "crime of violence" applicable to the sentencing in

this case is found in USSG §4B1.2(a)(2), the residual clause of

the career offender guideline.9 As that definition of "crime of

violence" is the same as in the ACCA, the government acknowledges

that it is invalid after Johnson II. See, e.g., United States v.

Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994) (noting "substantial

similarity" between the ACCA and §4B1.2 and that "interpreting one

phrase frequently is found to be persuasive in interpreting the

other phrase"). The government and Hudson agree that, instead,

the armed career criminal guideline's default offense level should

be applied in this case. See USSG §4B1.4(b)(3)(B). The parties

agree that the appropriate BOL is therefore 33, and, after a

reduction for acceptance of responsibility, Hudson's total offense

level (TOL) should be 30, rather than the 31 that was assigned at

sentencing.

Second, the government says that Johnson II also

operates to invalidate Hudson's placement in Criminal History

Category (CHC) VI, again because that determination relied upon

the career offender guideline's definition of crime of violence.

9 The government expressly eschews reliance on the career
offender guideline's force clause, §4B1.2(a)(1).

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See id. §4B1.4(c)(2). The parties agree that CHC V is appropriate,

and that combining the correct TOL of 30 with CHC V yields a proper

GSR calculation of 151-188 months' imprisonment rather than the

GSR of 188-235 months calculated at sentencing. For purposes of

this appeal, we accept the government's concessions, but after

accepting them we vacate and remand for resentencing.

Hudson did not object to the guidelines calculations at

sentencing, so we review for plain error. See e.g., United States

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Having conceded error,

see United States v. Paneto, 661 F.3d 709, 715 (1st Cir. 2011)(a

sentencing court "is obligated to calculate the GSR correctly"),

the government argues only that Hudson's substantial rights have

not been affected.10

In a sentencing appeal under plain error review, to show

that an error affected his substantial rights, a defendant must

demonstrate "a reasonable likelihood 'that, but for the error, the

district court would have imposed a different, more favorable

sentence.'" United States v. Ortiz, 741 F.3d 288, 293-94 (1st

Cir. 2014) (quoting United States v. Turbides-Leonardo, 468 F.3d

10 Ordinarily, to benefit from plain error review, an
appellant must establish that "(1) an error occurred which was (2)
clear or obvious and which not only (3) affected his substantial
right but also (4) seriously impaired the fairness, integrity, or
public reputation of the judicial proceedings." United States v.
Savarese, 686 F.3d 1, 12 (1st Cir. 2012).

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34, 39 (1st Cir. 2006)). Relevant to Hudson's claim, the Supreme

Court has observed recently that "[w]hen a defendant is sentenced

under an incorrect guidelines range -- whether or not the

defendant's ultimate sentence falls within the correct range --

the error itself can, and most often will, be sufficient to show

a reasonable probability of a different outcome absent the error."

Molina-Martinez v. United States, ___ U.S. ___, 136 S. Ct. 1338,

1345 (2016); see also Ortiz, 741 F.3d at 294 (noting that "a

calculation error that artificially increases the GSR is unlikely

to be harmless"). Our approach has been to attempt to discern

whether there exists "a 'clear statement by the [sentencing] court'

that would be sufficient to 'diminish the potential of the

[Guideline Sentencing Range] to influence the sentence actually

imposed.'" United States v. Marchena-Silvestre, 802 F.3d 196, 201

(1st Cir. 2015) (quoting Ortiz, 741 F.3d at 294). If such a clear

statement exists, then we may affirm the sentence. See Molina-

Martinez, 136 S. Ct. at 1346-47.

In announcing the sentence, the district judge described

Hudson's crime as "quite serious" and stated that "[f]iring

multiple rounds of ammunition at point-blank range at any person

is absolutely outrageous." The court observed that "[t]his is not

a situation in which you simply were found to be in possession of

ammunition or in possession of a firearm as a felon." Moreover,

the court made repeated references to Hudson's extensive criminal

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history and the need to keep the community safe. And finally,

when addressing Hudson's request for a variance below the

guidelines range, the court stated:

I see no basis to vary from the [GSR] in this
case, certainly [none] to vary underneath the
guidelines in this case, and considering
[Hudson's] personal circumstances and the
nature and circumstances of this particular
offense, I conclude that a sentence of about
the middle [of] that range is appropriate.

These observations, though appropriately severe, do not

suggest to us that the court intended to untether Hudson's sentence

from the GSR that had been calculated. On the contrary, it appears

that the sentencing court may well have "used the GSR as an

anchoring point" to reach its 216-month sentence. Ortiz, 741 F.3d

at 294. While the court viewed Hudson's conduct as reprehensible

and noted his extensive criminal history, it nonetheless chose a

sentence well within the incorrectly calculated GSR.

Finding no clear contrary expression in the record, the

"district court's evident intent to sentence" Hudson to a within-

guidelines sentence is an insufficient basis to "demonstrate that

the district court's failure" to calculate correctly the

"sentencing range did not affect the sentence it imposed." United

States v. Tavares, 705 F.3d 4, 27-28 (1st Cir. 2013). With a

correctly calculated GSR "there is at least a reasonable likelihood

that the [district court] would have landed on" a shorter sentence,

and "[n]othing in this record provides any indication clear enough

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to overbear the probative force of this logical presumption."

Marchena-Silvestre, 802 F.3d at 202.

IV. Conclusion

Hudson's convictions for possession with intent to

distribute and assault with a dangerous weapon qualify as

predicates under the Armed Career Criminal Act, but we vacate his

guidelines sentence for the reasons stated above. Accordingly,

the judgment of the district court is affirmed in part, vacated in

part, and remanded for resentencing consistent with this opinion.

So ordered.

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