United States v. Fields

United States Court of Appeals
For the First Circuit

No. 14-2137

UNITED STATES OF AMERICA,

Appellee,

v.

ERNEST FIELDS,

Defendant, Appellant.

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

[Hon. Denise J. Casper, U.S. District Judge]

Before

Torruella, Lynch, and Barron,
Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, with
whom the Federal Public Defender Office was on brief, for
appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

May 13, 2016
 BARRON, Circuit Judge. Ernest Fields ("Fields") pleaded

guilty to being a felon in possession of a firearm and ammunition.

On appeal he contends that his conviction must be overturned

because the police obtained the firearm and ammunition in

consequence of a violation of the Fourth Amendment. Fields also

appeals his sentence. He contends that it must be vacated because

the District Court mistakenly concluded that a United States

Sentencing Guidelines (the "Guidelines") enhancement for career

offenders applied to him. We affirm the conviction but vacate and

remand the sentence.

I.

On April 10, 2013, Fields was indicted under 18 U.S.C.

§ 922(g)(1) on one count of being a felon in possession of a

firearm and ammunition. The indictment arose out of an encounter

between Fields and the Boston police in the early morning hours of

September 12, 2012. The encounter occurred near Madison Park High

School in the Roxbury neighborhood of Boston. It lasted several

minutes.

At first, the encounter involved only Fields and one

Boston police officer. But that officer eventually called for

backup, and four additional officers arrived on the scene. At

some point after those officers arrived, the police conducted a

pat-frisk of Fields. The police acquired the firearm and

ammunition during that frisk.

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 Following the indictment, Fields sought to suppress the

firearm and ammunition on the ground that the police had acquired

that evidence only because they had seized Fields without a legally

sufficient basis for doing so. The District Court, after holding

a hearing, denied Fields's motion. United States v. Fields, No.

13–10097–DJC, 2014 WL 2616636 (D. Mass. June 11, 2014).

The District Court ruled that Fields was seized neither

when the officer that he initially encountered spoke with him nor

when the four officers later arrived as backup. The District Court

did hold that the police seized Fields later on in the encounter,

when the police physically subdued Fields in order to conduct a

pat-frisk of him. At that time, the District Court concluded, the

police had a lawful basis to seize and search Fields because the

police had probable cause to arrest him for assault and battery on

a police officer.1

On June 12, 2014, Fields pleaded guilty to the felon-

in-possession count. In doing so, he reserved his right to

challenge on appeal the District Court's denial of his motion to

suppress.

1 The District Court also ruled in the alternative that
suppression was not warranted because even if the seizure did occur
at the time the four backup officers arrived on the scene, the
police would have inevitably discovered the firearm and the
ammunition.

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 On October 22, 2014, the District Court sentenced Fields

to a term of imprisonment of 60 months, to be followed by three

years of supervised release. In selecting the sentence, the

District Court referenced the Guidelines sentencing range that had

been set forth in Fields's pre-sentence report ("PSR").

The PSR calculated that range as follows. The PSR

assigned Fields a base offense level ("BOL") under the Guidelines

of 24. In calculating Fields's BOL, the PSR applied U.S.S.G.

§ 2K2.1(a)(2). That guideline provides for an enhancement to the

defendant's BOL if the defendant satisfies certain career offender

requirements. Under that enhancement, "if the defendant committed

any part of the instant offense subsequent to sustaining at least

two felony convictions of . . . a crime of violence," the defendant

shall be assigned a BOL of 24.2 U.S.S.G. § 2K2.1(a)(2) (emphases

added).

The PSR identified the following two prior felony

convictions of Fields as convictions of a "crime of violence": his

conviction for resisting arrest for which he was sentenced in

September 2010, and at least one of a set of convictions that arose

out of a single incident and for which Fields had received a single

2 The total offense level was calculated to be 21 after a
three-level downward adjustment for acceptance of responsibility.
U.S.S.G. § 3E1.1(b).

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sentence in July 2010.3 Those July 2010 convictions included

convictions under Massachusetts law for assault with a dangerous

weapon ("ADW"), assault and battery with a dangerous weapon

("ABDW"), assault and battery on a police officer ("ABPO"), and

resisting arrest.4

The District Court concluded that the Guidelines range

reflected in the PSR was properly calculated at 70-87 months, which

was consistent with Fields's having a BOL of 24 and a criminal

history category of V. But the District Court also concluded that

a downward departure in Fields's criminal history category was

warranted because that category, although properly calculated,

substantially overrepresented the seriousness of Fields's criminal

history. See U.S.S.G. § 4A1.3(b). That departure translated to

a Guidelines range of 60-71 months, which was consistent with

applying a BOL of 24 and a criminal history category of IV to

Fields. The District Court then sentenced Fields to a term of

3 The record does not disclose the dates of conviction for
the convictions referenced. References to the "September 2010
conviction" and the "July 2010 convictions" thus refer to the dates
of sentencing.
4 The PSR also assigned Fields a criminal history score of 12

under the Guidelines, which translated to a criminal history
category of V. In calculating Fields's criminal history score,
the PSR applied a sentencing enhancement that resulted in Fields's
receiving three criminal history points because his July 2010
convictions for ABDW, ABPO, and resisting arrest were classified
as convictions of a crime of violence under the career offender
guideline. See U.S.S.G. § 4A1.1(e).

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imprisonment -- 60 months -- that was at the low end of that lower

range.

On appeal, Fields challenges both his conviction and his

sentence. He challenges his conviction on the ground that the

District Court erred in denying his motion to suppress the firearm

and ammunition. Fields challenges his sentence on the ground that

the District Court erred in classifying his prior convictions as

convictions of a crime of violence for purposes of calculating his

BOL under the Guidelines.

We first consider Fields's challenge to his conviction.

We then turn to his challenge to his sentence.

II.

Fields argues that his conviction must be vacated

because the District Court erred in denying his motion to suppress

the firearm and ammunition. "When reviewing a challenge to the

district court's denial of a motion to suppress, we view the facts

in the light most favorable to the district court's ruling on the

motion, and we review the district court's findings of fact and

credibility determinations for clear error." United States v.

Fermin, 771 F.3d 71, 76 (1st Cir. 2014) (quoting United States v.

Camacho, 661 F.3d 718, 723 (1st Cir. 2011)). We review conclusions

of law, including the ultimate conclusion whether a seizure

occurred, de novo. Camacho, 661 F.3d at 724. Fields bears the

burden of establishing that he was seized. Id.

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 A.

The Fourth Amendment prohibits "unreasonable searches

and seizures." U.S. Const. amend. IV. "The protections of the

Fourth Amendment apply not only to traditional arrests, but also

to those brief investigatory stops generally known as Terry stops."

Camacho, 661 F.3d at 724. An officer may ordinarily execute a

Terry stop without running afoul of the Fourth Amendment if the

officer "reasonably suspects that the person apprehended is

committing or has committed a crime." Id. at 726 (quoting Arizona

v. Johnson, 555 U.S. 323, 323 (2009)).

The police need not have taken physical custody of a

person in order to be deemed to have effected a Terry stop for

which at least reasonable suspicion is required. Such a stop

instead may occur merely upon law enforcement making what the

Supreme Court has termed a "show of authority." See United States

v. Mendenhall, 446 U.S. 544, 553-54 (1980). Such a "show of

authority" occurs, however, only when "in view of all of the

circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave." Id. at 554. And,

further, the show of authority effects a seizure only when the

defendant actually yields or submits to the show of authority.

See California v. Hodari D., 499 U.S. 621, 628-29 (1991).

We appreciate "that few people . . . would ever feel

free to walk away from any police question." United States v.

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Cardoza, 129 F.3d 6, 16 (1st Cir. 1997). But that reality

obviously does not mean that every police-citizen encounter

results in a show of authority for Fourth Amendment purposes. See

id. The "free to leave" test thus focuses on whether the conduct

of law enforcement "objectively communicate[s] that [law

enforcement] is exercising [its] official authority to restrain

the individual's liberty of movement." Id. (emphasis added).

The Supreme Court has identified several characteristics

of an encounter with law enforcement that might indicate that there

was a show of authority. These characteristics include: "[1] the

threatening presence of several officers, [2] the display of a

weapon by an officer, [3] some physical touching of the person of

the citizen, or [4] the use of language or tone of voice indicating

that compliance with the officer's request might be compelled."

Mendenhall, 446 U.S. at 554.

B.

Fields's challenge to the District Court's ruling on his

suppression motion rests on his contention that he was not "free

to leave" -- and thus that a seizure occurred due to a "show of

authority" -- when the four officers arrived at the scene in

response to a call for backup from the officer Fields initially

encountered. According to Fields, the five officers at that point

made the requisite show of authority even though they lacked a

lawful basis to seize him.

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 The government responds in part by arguing that it does

not matter whether the arrival of the officers did result in a

show of authority, because the police had reasonable suspicion to

justify Fields's seizure even at that point in the encounter. To

support this conclusion, the government argues that the first

officer who encountered Fields reasonably suspected that Fields

had previously trespassed on public property and thus that this

officer had reasonable suspicion to detain Fields even at that

time.

There is a question whether the government is right that

the police would have been justified under the Fourth Amendment in

seizing Fields on the basis of reasonable suspicion that he had

committed that trespassing offense, given that it was a completed

non-felony offense. Compare Gaddis v. Redford Township, 364 F.3d

763, 771 n.6 (6th Cir. 2004) ("Police . . . may make a stop when

they have reasonable suspicion of a completed felony, though not

of a mere completed misdemeanor [or lesser infraction]."), with

United States v. Moran, 503 F.3d 1135, 1141 (10th Cir. 2007)

(noting the circuit split on whether reasonable suspicion of a

completed non-felony offense can justify a Terry stop under the

Fourth Amendment and declining to adopt the Sixth Circuit's per se

rule). But we need not decide that question. And that is because

we affirm the District Court's conclusion that no show of

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authority -- and thus no seizure -- had occurred as of the time

that the four backup officers arrived on the scene.

To explain why we reach this conclusion, we first

describe the encounter between Fields and the police in some

detail, as the determination of the point at which a show of

authority occurs is necessarily dependent on the particular facts

in each case. We then explain why there was no error in the

District Court's conclusion that the facts do not suffice to

demonstrate that Fields has met his burden of showing that there

was a show of authority -- and thus a seizure -- at the time that

the backup officers arrived on the scene.

C.

In describing what happened that night, "we relate the

facts 'as the trial court found them, consistent with record

support.'" United States v. Ford, 548 F.3d 1, 2 (1st Cir. 2008)

(quoting United States v. Ruidiaz, 529 F.3d 25, 27 (1st Cir.

2008)). The encounter began in the early hours of September 12,

2012. Officer Steven Dodd and other police officers were

investigating a complaint that a group of people had gathered near

Madison Park High School and had intended to engage in drug

activity.

Following the receipt of that complaint, Officer Dodd

and his team briefly caught sight of a group of eight to ten

individuals in that area. But the officers lost track of the

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group. Officer Dodd therefore radioed to other officers in the

area to seek their help in locating a group that he reported was

heading from the front of the high school toward Roxbury Heritage

State Park and Roxbury Street.

Officer Joseph Fisher, who was working a routine patrol

at the time, responded to the call. He parked his police cruiser

on the east end of Roxbury Street so that it was facing the

direction of the Roxbury Heritage State Park. Soon thereafter,

Officer Fisher observed a group of six to eight individuals

traveling from the state park area to Roxbury Street.

At that point, Fields appeared to break off from the

group that had just emerged onto Roxbury Street. Fields then

headed in the direction of Officer Fisher while the rest of the

group headed in the opposite direction. As Fields passed Officer

Fisher's police cruiser, Officer Fisher got out of the car.

Officer Fisher then proceeded to the rear of the vehicle (driver's

side), and called out to Fields in a conversational tone, "Hey,

what's going on tonight?"

Upon hearing Officer Fisher's question, Fields turned

around, walked back a few steps toward the rear of the cruiser

(passenger's side), and proceeded to speak with Officer Fisher.

Officer Fisher at that point made a few general inquiries of

Fields, including asking Fields where he was coming from and where

he was going.

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 The conversation quickly became "one-sided," however.

Fields asserted that he was not comfortable with the police; that

police made him nervous; that police had killed someone in the

South End; and that Officer Fisher would need a reason to search

him.

Officer Fisher observed that Fields was becoming

increasingly agitated. "At this point, [Officer Fisher] had made

no commands to Fields, had not requested any identification, had

no physical contact with [Fields], had not blocked [Fields's] path

down the street and . . . had kept his firearm holstered throughout

the exchange." Fields, 2014 WL 2616636, at *2.

According to the District Court, Officer Fisher became

concerned about the "nature and tone" of Fields's comments and

Fields's general behavior, and so the officer called for backup by

using the radio in his tactical vest. Id. Specifically, Officer

Fisher radioed that he was "off with one on Roxbury Street by

myself."

Within about a minute, four other police officers

(including Officer Dodd) arrived on the scene. They emerged from

an area near the front of the cruiser.

According to Officer Fisher's account, the officers

positioned themselves at the sides of his police cruiser, such

that neither the officers nor the police cruiser blocked Fields

from proceeding down Roxbury Street toward Malcolm X Boulevard,

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which was the direction in which Fields was originally traveling.

Officer Dodd's testimony, although different in some respects from

Officer Fisher's testimony, was also that none of the officers

"stood directly in front of Fields." Id. Thus, according to

Officer Dodd's account, too, Fields could have continued down

Roxbury Street toward Malcolm X Boulevard.

None of the backup officers spoke to Fields. Fields

reiterated his nervousness and displayed more agitation during

this portion of the encounter. It was not until Fields lifted his

shirt and inadvertently revealed that he had a knife on his person

that the officers moved toward Fields and that Officer Dodd

indicated that he was going to conduct a pat-frisk of Fields.

Fields resisted the pat-frisk by pushing Officer Dodd's hands away

twice. Officer Fisher and Officer Andrew Hunter then moved in to

assist Officer Dodd by pinning Fields's arms to his side, thereby

enabling Officer Dodd to conduct a pat-frisk of Fields.5

D.

Fields contends that the presence of multiple officers,

the formation of the officers, and the calling of backup by Officer

Fisher in Fields's presence, in combination, constituted a "show

of authority" and thus converted the encounter at that point into

5 Officers Dodd and Hunter were wearing plainclothes with
Boston Police badges while Officers Fisher, Jose Dias, and Michael
MacDougall were in uniform at the time in question.

- 13 -
a Terry stop for which reasonable suspicion was required. But the

District Court concluded otherwise on the basis of all the

circumstances of the encounter described by the testimony at the

suppression hearing. We do not see a basis for overturning the

District Court's ruling.

It is well established that the absence of police

commands or any sort of verbal demonstration of authority weighs

against the conclusion that there has been a show of authority

sufficient to effect a seizure. Compare United States v. Drayton,

536 U.S. 194, 200-01 (2002) ("Law enforcement officers do not

violate the Fourth Amendment's prohibition on unreasonable

seizures merely by approaching individuals on the street or in

other public places and putting questions to them if they are

willing to listen."), and Cardoza, 129 F.3d at 16 (noting as

significant in finding no seizure the fact that the officer did

not ask defendant to stop or to approach police car), with United

States v. Espinoza, 490 F.3d 41, 49 (1st Cir. 2007) (finding

seizure where single officer approached defendant's vehicle and

asked defendant, in a commanding tone, to shut off engine). It is

thus significant that the District Court found that there were no

such demonstrations here.

The testimony at the hearing supports the finding by the

District Court that the verbal exchange between Fields and Officer

Fisher was, on the whole, dominated and perpetuated by Fields

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himself. Moreover, the District Court supportably found that

Officer Fisher, to the extent he did speak to Fields, merely asked

general questions in a conversational way.

Similarly, the record supports the District Court's

finding that, prior to the sighting of the knife, none of the four

backup officers spoke to Fields at all. Thus, although the backup

officers were on the lookout for illegal group activity, the record

accords with the District Court's finding that -- at the relevant

time -- none of those officers made any comments to Fields that

indicated that they were treating Fields as a potential suspect

or, more directly, that Fields should not leave.

The record also backs up the District Court's findings

that none of the officers physically touched Fields, brandished

their weapons, or, after arriving on the scene, moved toward Fields

at any point prior to the sighting of the knife. These factors,

too, weigh against the conclusion that a seizure occurred at the

time that Fields contends one occurred. See Mendenhall, 446 U.S.

at 554.

To be sure, the presence of five police officers and the

formation of these officers are certainly "important" features of

the encounter. See United States v. Berryman, 717 F.2d 651, 655

(1st Cir. 1983). And we have said in dicta that "[i]t is not clear

that a reasonable person, surrounded by five police officers, would

believe that he was free to leave." Fermin, 771 F.3d at 77. But

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whether a person is "surrounded" is itself a judgment to be made

from the facts of each case. After all, "the presence of multiple

officers does not automatically mean that a stop has occurred."

United States v. Goddard, 491 F.3d 457, 461 (D.C. Cir. 2007) (per

curiam); see also Ford, 548 F.3d at 5.

In this case, the District Court supportably found that

Fields was not meaningfully restricted in his field of movement in

consequence of the arrival of the backup officers.6 In making that

finding, the District Court relied in part on our decision in

United States v. Smith, 423 F.3d 25 (1st Cir. 2005). There, we

held that the defendant was not "surrounded" by officers, because

the officers -- in approaching the defendant while he was sitting

on a wall with a telephone pole in front of him -- stood "where

they had to" and because the defendant "could have moved in a

variety of directions." Smith, 423 F.3d at 30.

Here, Fields, who was standing in front of a parked

police cruiser at the time the backup officers arrived, appears to

have had fewer points of departure from the scene than the

defendant had in Smith. But the officers' testimony about the

6
The District Court concluded that, whether Officer Dodd's
or Officer Fisher's account of the positioning of the officers
controls, "it remains the case that the officers, to assist Officer
Fisher, had to stand somewhere in [Fields's] vicinity and could
only do so around or behind the car and Fields still had point of
egress either up or down, respectively, the street." Fields, 2014
WL 2616636, at *3.

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positioning of the various parties, as well as the diagrams that

the officers supplied depicting where the parties stood, accords

with the District Court's determination that the positioning of

the officers did not restrict Fields from walking in the direction

in which he was originally traveling. For that reason, the

formation of the police officers in this case does not compel a

finding that Fields was "surrounded" or that law enforcement

objectively communicated to him that he was not free to leave the

scene. See Michigan v. Chesternut, 486 U.S. 567, 575 (1988)

(finding no seizure in part because officers did not "block

[defendant's] course [of travel] or otherwise control the

direction or speed of his movement"); Camacho, 661 F.3d at 725

(finding seizure in part because officers "intentionally blocked"

the path on which defendant was traveling with their Crown

Victoria); Ford, 423 F.3d at 25 (finding no seizure in part because

defendant, though restricted in his field of movement by the

presence of two police officers and a telephone police, "could

have moved in a variety of directions").

Of course, Fields did not actually leave the scene

despite the available path afforded him and the absence of any

verbal signals from the police that he was obliged to stay. But

that is not determinative of whether the police objectively

communicated to Fields that he was required to stay. See Hodari

D., 499 U.S. at 628 ("[T]he test for existence of a 'show of

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authority' is an objective one: not whether the citizen perceived

that he was being ordered to restrict his movement, but whether

the officer's words and actions would have conveyed that to a

reasonable person."). In fact, Fields similarly did not leave

when he was initially in the presence only of Officer Fisher, yet

Fields concedes that there was no show of authority at that point.

There remains Fields's contention that a show of

authority occurred at the time he asserts because Officer Fisher

called for backup and that call, coupled with the actual arrival

of the four backup officers, objectively communicated to Fields

that law enforcement was targeting him as a suspect and thus that

he was not free to leave. But the principal case upon which Fields

relies for this contention, United States v. Beauchamp, 659 F.3d

560, 566-67 (6th Cir. 2011), involved very different facts.

The court in that case concluded that a seizure occurred

only after the defendant "walk[ed] away from the police two times"

and was told to stop, turn around, and walk toward the police.

Id. at 566. The Sixth Circuit, quite reasonably, determined that

the police officers' persistence in pursuing the defendant

notwithstanding the defendant's attempts to walk away, in

combination with the request by one of the officers that the

defendant stop, objectively communicated to the defendant that he

was under investigation and thus that he was not free to leave.

See id. at 567.

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 Unlike in Beauchamp, however, the police did not follow

Fields after he had walked away. The police also did not at any

point tell Fields not to leave. The testimony at the suppression

hearing reveals only that Officer Fisher asked Fields some general

questions and that Officer Fisher, after becoming concerned with

Fields's statements and seeming agitation, radioed that he was

"off with one on Roxbury Street by myself." The backup officers

never spoke to Fields after they arrived. Thus, "the police

conduct involved here would not have communicated to the reasonable

person an attempt to capture or otherwise intrude upon [the

defendant's] freedom of movement" for the purpose of investigating

criminal wrongdoing. Chesternut, 486 U.S. at 575.

Moreover, in a given encounter, there may be legitimate

reasons for an officer to summon and maintain backup, such as

ensuring the officer's safety, that do not relate to the

investigation (let alone detention) of a suspect. The arrival of

backup officers in response to a call for assistance thus may

signal, depending on the facts, only that backup will remain on

the scene in the event that the person who has encountered a lone

police officer chooses to stay, rather than that such a person is

not free to leave. See State v. Thomas, 246 P.3d 678, 686 (Kan.

2011) (noting that "a mere call for back-up does not automatically

transform all citizen-law enforcement encounters into

investigatory detentions"); State v. Green, 826 A.2d 486, 499 (Md.

- 19 -
2003) ("That [law enforcement] called for back-up as a safety

measure did not suddenly transform the consensual encounter into

a seizure.").

Here, during the radio call, even if heard by Fields (a

point on which the District Court made no finding and on which the

record is unclear), Officer Fisher did not state that he was asking

for other officers to assist him in an effort to investigate

whether Fields had been engaged in criminal activity. Instead,

Officer Fisher appeared to be communicating only a concern for his

safety -- as evidenced by the words "by myself" -- due to the

agitation that Fields was exhibiting in his presence. So while a

reasonable person in Fields's shoes could perceive that the four

officers who arrived did so on his account and not due to pure

happenstance, it does not follow that their arrival therefore

objectively communicated to Fields that the police were targeting

him in the Beauchamp sense.

Indeed, a conclusion that the summoning and subsequent

arrival of backup automatically -- and without regard to other

facts that bear on the nature of the encounter as a

whole -- constitutes a show of authority could have a distorting

effect on an officer's decision about whether to take a precaution

for his own safety. Such an automatic rule would import into an

officer's calculus about whether to call for backup a determination

about whether there is a lawful basis to detain the person the

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officer has encountered. But the decision to detain someone so

that he or she may not leave may be distinct from the decision to

call for backup in order to ensure an officer's safety in the event

that the person in question chooses to stay. We thus decline to

adopt a per se approach in this context. Cf. Michigan v. Long,

463 U.S. 1032, 1052 (1983) (noting, in concluding that police

officers may, consistent with the Fourth Amendment, sometimes

search the passenger compartments of a car for weapons during a

lawful Terry stop, "we have not required that officers adopt

alternate means to ensure their safety in order to avoid the

intrusion involved in a Terry encounter").

E.

The totality of the circumstances test for assessing

whether a show of authority has occurred "does not produce a

crystalline landscape in our Fourth Amendment jurisprudence."

Ford, 548 F.3d at 7. "Th[at] test is necessarily imprecise,

because it is designed to assess the coercive effect of police

conduct, taken as a whole, rather than to focus on particular

details of that conduct in isolation." Chesternut, 486 U.S. at

573.

But the burden is on Fields to establish the show of

authority that is the necessary predicate for his claimed Fourth

Amendment violation. And under the totality of the circumstances

test that we must apply, we do not on these facts see a basis for

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overturning the District Court's conclusion that Fields failed to

demonstrate that there was a show of authority at the time the

four backup officers arrived on the scene -- a conclusion, we add,

that the District Court reached only after a thorough consideration

of the testimony and evidence presented at the suppression hearing.

We thus affirm the District Court's decision to deny Fields's

motion to suppress on the basis that there was no show of authority

and consequently no unlawful seizure at the time that Fields

contends one occurred.

III.

We now turn to Fields's challenge to his sentence.

Before we address the merits of his challenge, though, we need to

step back so that we can explain precisely what is in dispute --

and what is not.

Fields contends that the District Court erroneously

subjected him to a particular career offender enhancement under

the Guidelines, with the result that he was assigned too high of

a BOL and thus too high of a Guidelines sentencing range.

Specifically, Fields contends that the District Court erred in

applying the enhancement set forth in U.S.S.G. § 2K2.1(a)(2), which

provides for a BOL of 24 if the defendant has two prior convictions

of a crime of violence under the career offender guideline. Fields

argues that, in fact, none of his prior convictions qualified as

convictions of a crime of violence under the career offender

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guideline. Fields thus contends that his BOL should have been 14,

as that is the BOL that would have applied had Fields received no

career offender enhancement. See U.S.S.G. § 2K2.1(a)(6)(A).

In response, the government agrees that the District

Court's application of the sentencing enhancement set forth in

U.S.S.G. § 2K2.1(a)(2) was erroneous. The government takes that

position because the District Court classified Fields's September

2010 conviction for resisting arrest as a conviction of a crime of

violence under the career offender guideline, and the government

concedes on appeal that conviction cannot be so classified on this

record. The government also agrees with Fields that, in

consequence of this error, the case should be remanded for

resentencing.

The government does not agree with Fields, however, that

the BOL that should be applied to him on remand should be 14.

Rather, the government contends that the BOL that should be applied

to Fields on remand should be 20, which is the BOL that would apply

to a defendant subject to the enhancement set forth in U.S.S.G.

§ 2K2.1(a)(4)(A). The government contends that the District Court

should apply that enhancement instead of the one set forth in

U.S.S.G. § 2K2.1(a)(2), which was the Guidelines provision that

the District Court applied below. The enhancement that the

government contends should apply on remand requires that the

defendant have only one prior conviction of a crime of violence,

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rather than the two such convictions required under U.S.S.G.

§ 2K2.1(a)(2).

In practical terms, the dispute over the proper BOL to

apply to Fields on remand matters in the following way. Assuming

that the District Court will again sentence Fields on the basis of

a criminal history category of IV, Fields's Guidelines range would

be 37-46 months on the government's view, which is the range

consistent with a BOL of 20. On that same assumption, Fields's

Guidelines range would be 21-27 months on Fields's view, which is

the range consistent with a BOL of 14.

To support the application on remand of a BOL of 20, the

government contends that Fields's July 2010 convictions for ADW

and ABDW together "constitute one qualifying conviction [of] a

'crime of violence'" under the career offender guideline, Gov. Br.

55 (emphasis added), and that the enhancement set forth in U.S.S.G.

§ 2K2.1(a)(4)(A) therefore should apply.7 Given the government's

argument, we need not decide whether both of Fields's July 2010

convictions for ADW and ABDW qualify as convictions of a crime of

violence. We need only decide whether one of them does, as the

7 The government does not ask us to conclude that Fields's
July 2010 convictions for ADW and ABDW each constitute a conviction
of a crime of violence and thus trigger the application of U.S.S.G.
§ 2K2.1(a)(2). Nor does the government argue that Fields's July
2010 convictions for resisting arrest and ABPO, either
independently or together, constitute convictions of a crime of
violence.

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only career offender enhancement that the government contends

should apply would then be triggered.

The District Court, in assessing Fields's BOL, did not

pass on which of Fields's July 2010 convictions qualified as a

conviction of a crime of violence. The District Court thus did

not specifically pass on whether either of Fields's July 2010

convictions for ADW and ABDW qualified as a conviction of a crime

of violence. But the question is one of law, and the parties do

not ask us to remand so that the District Court can pass on the

question in the first instance. We thus proceed to analyze the

issue.

Fields did not object below to the classification of any

of his convictions as convictions of a crime of violence, see

United States v. Ríos–Hernández, 645 F.3d 456, 462 (1st Cir. 2011)

(noting that in such cases the plain-error standard of review

ordinarily applies), but the government does not appear to ask us

to apply the plain-error standard of review in evaluating Fields's

challenge. In any event, the standard of review is of little

consequence here because, as we next explain, it is clear that at

least one of Fields's July 2010 convictions for ADW and ABDW

qualifies as a conviction of a crime of violence.8

8 In his opening brief, Fields argued that the residual clause
of the career offender guideline was unconstitutional and thus
that his prior convictions did not qualify as convictions of a
crime of violence. As the government notes, Fields did not address

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 A.

In undertaking our inquiry, we start with -- and, it

turns out, end with -- Fields's July 2010 conviction for ADW,

because we conclude that that conviction does qualify as a

conviction of a crime of violence. To explain why this is the

case, we must first provide some background.

The career offender guideline defines a "crime of

violence" as "any offense under federal or state law, punishable

by imprisonment for a term exceeding one year, that (1) has as an

element the use, attempted use, or threatened use of physical force

against the person of another, or (2) is burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise

the prospect that his prior convictions might nevertheless qualify
as convictions of a crime of violence under the force clause of
the career offender guideline. It was only in his reply brief
that Fields addressed that prospect. Ordinarily, we treat
arguments raised for the first time in an appellant's reply brief
as waived. See United States v. Eirby, 515 F.3d 31, 36 n.4 (1st
Cir. 2008). It is unclear whether the government urges us to
follow that practice here. In any event, we may make an exception
where "justice so requires" and where the opposing party would not
be unfairly prejudiced by our considering the issue. See United
States v. Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011). And
here, we believe such an exception is proper. Johnson v. United
States, 135 S. Ct. 2551 (2015) (holding unconstitutional the
residual clause contained in the definition of "violent felony" in
the Armed Career Criminal Act), was decided after Fields's opening
brief was filed. That decision made the force clause loom larger
than otherwise would have been the case. Given that the government
does not clearly press for waiver and that the arguments concerning
whether Fields's prior convictions may qualify even under the force
clause have now been fully joined by both parties, we see no
prejudice to the government in considering such arguments.

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involves conduct that presents a serious potential risk of physical

injury to another." U.S.S.G. § 4B1.2(a). The first subparagraph

of the career offender guideline is often referred to as the "force

clause." The trailing portion of the second subparagraph of that

guideline is often referred to as the "Guidelines' residual

clause."

The parties agree that, in light of Johnson v. United

States, 135 S. Ct. 2551 (2015) ("Johnson II"), the residual clause

of the career offender guideline is unconstitutional and thus may

not be relied upon to classify a conviction as a conviction of a

crime of violence under the career offender guideline. We assume

without deciding that the parties are correct in their

interpretation of the status of the residual clause. See United

States v. Soto-Rivera, 811 F.3d 53, 59 (1st Cir. 2016). We

therefore consider only whether the July 2010 ADW conviction

qualifies as a conviction of a crime of violence under the force

clause of the career offender guideline.

To assess whether a conviction qualifies as a conviction

of a crime of violence under that clause, we must apply what is

known as the "categorical" approach. Under that approach, "we

compare the statutory elements of the crime for which the defendant

was previously convicted" -- "without regard to the specific facts"

or conduct underlying that conviction -- "with Congress's

definition of the type of crime that may serve as a predicate

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offense" (that is, a crime of violence). United States v. Fish,

758 F.3d 1, 5 (1st Cir. 2014). The object is to determine "whether

the conduct criminalized by the statute, including the most

innocent conduct, qualifies as a crime of violence." Id.9

The Commonwealth's ADW statute is violated by

"[w]hoever, by means of a dangerous weapon, commits an assault

upon another." Mass. Gen. Laws ch. 265, § 15B(b). Massachusetts

law recognizes two theories of assault: attempted battery and

threatened battery. Commonwealth v. Porro, 939 N.E.2d 1157, 1163

(Mass. 2010). Battery has been defined as "harmful [or] offensive

touching." See Commonwealth v. Burke, 457 N.E.2d 622, 624 (Mass.

1983). The crime of simple assault has thus been held to encompass

both attempted and threatened offensive touching. See United

States v. Martinez, 762 F.3d 127, 138 (1st Cir. 2014). ADW "adds

one additional element, namely, that the assault was perpetrated

by means of a dangerous weapon." United States v. Whindleton, 797

F.3d 105, 112 (1st Cir. 2015) (quoting Commonwealth v. Melton, 763

N.E.2d 1092, 1096 (Mass. 2002)); see Commonwealth v. Appleby, 402

N.E.2d 1051, 1056-57 (Mass. 1980) (explaining the dangerous weapon

element). Finally, under either the attempted battery form or the

9
In certain circumstances involving divisible state statutes,
the Court instructs us to apply what is known as the "modified
categorical" approach. See Descamps v. United States, 133 S. Ct.
2276, 2281-82 (2013). The government does not ask us to apply
that approach here.

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threatened battery form of ADW, the mens rea is one of specific

intent, as the defendant must either intend to commit a battery or

intend to put the victim in fear of an imminent battery. See

Porro, 939 N.E.2d at 1163.

Fields contends that a conviction under the

Massachusetts ADW statute does not qualify as a conviction of a

crime of violence under the force clause because the Massachusetts

ADW statute criminalizes attempted or threatened offensive

touching.10 Fields bases that contention solely on Johnson v.

United States, 559 U.S. 133 (2015) ("Johnson I").11 In Johnson I,

the Court interpreted the force clause contained in the definition

of "violent felony" in the Armed Career Criminal Act ("ACCA"), 18

U.S.C. § 924(e)(2)(B)(i). In doing so, the Court held that "the

phrase 'physical force' means violent force -- that is, force

10Fields does not contend that a conviction under the
Massachusetts ADW statute fails to qualify as a conviction of a
crime of violence because one may be convicted of that offense on
the basis of only a mens rea of recklessness. And for good reason.
As we recently concluded in the context of holding that "a
conviction under [the Massachusetts ADW statute] includes a mens
rea requirement sufficient to qualify the conviction as a predicate
under the [Armed Career Criminal Act's] force clause," "under
Massachusetts decisional law an ADW conviction requires that the
use or threat of physical force be intentional." United States v.
Hudson, No. 14–2124, 2016 WL 2621093, at *4-5 (1st Cir. May 9,
2016). To the extent Fields contends that we suggested otherwise
in United States v. Am, 564 F.3d 25 (1st Cir. 2009), Hudson
explains that "[a]lthough ABDW may be committed recklessly, we
made clear in Am that ADW cannot be." Id. at *4 n.8.
11 The references to Johnson I and Johnson II are for
convenience only, as these cases bear no meaningful relationship
to one another.

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

Id. at 140 (emphasis in original). The Court thus concluded that,

under the categorical approach, a conviction under a Florida simple

battery statute did not qualify as a conviction of a "violent

felony" within the meaning of the ACCA's force clause because that

statute criminalized offensive contact such as an unconsented-to

tap on the shoulder -- that is, conduct not involving "violent

force." Id. at 138.

Fields's argument, however, is foreclosed by our recent

decision in United States v. Whindleton, 797 F.3d 105 (1st Cir.

2015). There, we held that a conviction under the Massachusetts

ADW statute categorically qualified as a "violent felony" within

the meaning of the ACCA's force clause, because "the element of a

dangerous weapon imports the 'violent force' required by [Johnson

I] into the otherwise overbroad simple assault statute." Id. at

114. We reasoned that "the harm threatened by assault is far more

violent than offensive touching when committed with a weapon that

is designed to produce or used in a way that is capable of producing

serious bodily harm or death." Id. In other words, we concluded

that a conviction under the Massachusetts ADW statute

categorically qualified as a violent felony under the ACCA's force

clause because the minimum conduct criminalized by the statute

qualifies as such by virtue of the dangerous weapon element. See

also United States v. Hudson, No. 14–2124, 2016 WL 2621093, at *4

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(1st Cir. May 9, 2016) ("[W]e reaffirm that a Massachusetts ADW

conviction meets the physical force requirement under the force

clause of the ACCA.").

True, this case involves the career offender guideline

and the definition of "crime of violence" rather than the ACCA and

the definition of "violent felony." But we have expressly stated

that "the terms 'crime of violence' under the career offender

guideline and 'violent felony' under the ACCA are nearly identical

in meaning, s[uch] 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 fact, the force clause language of

these provisions is identical.

We thus conclude that, in light of Whindleton, Fields's

July 2010 ADW conviction qualifies as a conviction of a crime of

violence under the force clause of the career offender guideline.12

12Fields points out that in United States v. Fish, this Court
stated that a conviction under the Massachusetts ABDW statute would
not qualify as a conviction of a crime of violence under the force
clause of 18 U.S.C. § 16 because offensive touching does not (after
Johnson I) "have 'as an element' the use of physical force." 758
F.3d 1, 9 (1st Cir. 2014). Fields contends that Fish's logic
extends to describe the nature of a conviction under the
Massachusetts ADW statute, as that statute criminalizes attempted
and threatened offensive touching. But the discussion of the force
clause in Fish was dicta, as the Court based its holding on the
residual clause in § 16 rather than the force clause. See id.
(noting that the government in Fish declined to argue that the
defendant's prior conviction under the Massachusetts ABDW statute
qualified as a conviction of a crime of violence under the force
clause of § 16). Thus, Fish's holding provides no support for
Fields's argument.

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As a result, we vacate and remand Fields's sentence for

resentencing, in accordance with the government's request

regarding the application of the sentencing enhancement set forth

in U.S.S.G. § 2K2.1(a)(4)(A).13

IV.

For the reasons stated, we AFFIRM the District Court's

denial of Fields's motion to suppress. But we VACATE and REMAND

for resentencing proceedings consistent with this opinion.

13Fields does not appear to challenge, either in his opening
brief or his reply brief, the District Court's classification of
his prior convictions as convictions of a crime of violence for
purpose of calculating his criminal history (as opposed to his
BOL).

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