United States v. Tavares

United States Court of Appeals
For the First Circuit

No. 14-2319

UNITED STATES OF AMERICA,

Appellee,

v.

VERISSIMO TAVARES,

Defendant, Appellant.

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

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Thompson, Selya and Kayatta,
Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, with
whom Federal Public Defender Office was on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

December 1, 2016
 KAYATTA, Circuit Judge. Convicted of being a felon in

possession of a firearm, Verissimo Tavares appeals both the

conviction and his sentence. He claims that the district court

erred in admitting improper and prejudicial expert testimony

concerning the absence of fingerprints on the gun that the jury

found Tavares to have possessed. He also claims that the district

court erred in its guideline sentencing calculations by treating

his convictions for resisting arrest and assault and battery with

a dangerous weapon as "crime[s] of violence." For the following

reasons, we affirm the conviction but remand for reconsideration

of the sentence.

I. BACKGROUND

Before dawn on August 4, 2013, two Boston police officers

responded to a dispatch about a disturbance in a Boston

neighborhood. As the officers dispersed the crowd, they heard

gunshots emanating from the next street; when they went to

investigate the source, they caught sight of a figure, subsequently

revealed to be Tavares, riding away on a motor scooter. A chase

ensued.

One of the pursuing police officers testified that he

saw an object in Tavares's hands. Another testified that he saw

Tavares throw an object into the yard of a nearby dwelling at 71

Clarkson Street. The chase ended when the police took Tavares

into custody. Searching for the hurled object, one of the officers

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discovered a silver handgun in the yard of 71 Clarkson Street.

Detectives were summoned to examine the firearm. They determined

that the handgun was a semiautomatic firearm, loaded with five

rounds of ammunition.

A federal grand jury charged Tavares as a felon in

possession of a firearm. See 18 U.S.C. § 922(g)(1). He maintained

his innocence, and the case went to trial. During the government's

case in chief, several police officers testified about the chase,

the arrest, and the retrieval of the firearm. The government also

presented the testimony of Richard Auclair, a fingerprint expert

who held the position of Criminalist II in the Latent Print Unit

(the Unit) at the Boston Police Department. The defense rested

without presenting any evidence. The jury found Tavares guilty.

In anticipation of sentencing, the probation department

prepared a presentence investigation report (the PSR). The Report

recommended that the district court apply a four-level career

offender enhancement under the sentencing guidelines, see U.S.S.G.

§ 2K2.1(a)(2), based on a conclusion that Tavares's prior

Massachusetts convictions for resisting arrest, see Mass. Gen.

Laws ch. 268, § 32B(a), and for assault and battery with a

dangerous weapon (ABDW), see id. ch. 265, § 15A(b), were both

"crime[s] of violence." Tavares objected to the classification of

his putative predicate offenses as crimes of violence under the

residual clause of the sentencing guidelines' career offender

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provision. See U.S.S.G. § 4B1.2(a)(2) (Nov. 2014 ed.); id. at

§ 2K2.1(a)(2), cmt. n.1. Relying on our decisions in United States

v. Glover, 558 F.3d 71, 80–81 (1st Cir. 2009), and United States

v. Almenas, 553 F.3d 27, 33–34 (1st Cir. 2009), the district court

overruled this objection. In so doing, the district court deemed

both prior convictions to be for crimes of violence under the

residual clause. The career offender enhancement, coupled with

other adjustments not now in issue, yielded an advisory guideline

range of 120-150 months, necessarily capped at 120 months by the

ten year maximum applicable to the statute of conviction. See 18

U.S.C. § 924(a)(2). Using the advisory guideline range as a "place

to start" and mulling the factors enumerated in 18 U.S.C.

§ 3553(a), the court imposed an 84-month prison term. This timely

appeal followed.

II. ANALYSIS

Challenging his conviction, Tavares argues that the

district court erred, to his prejudice, by admitting over his

objection a portion of Auclair's expert testimony. Alternatively,

he argues that the district court erred in calculating his

guideline sentencing range by counting his prior convictions as

convictions for crimes of violence. We address each argument in

turn.

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A. Expert Testimony

The principal issue at trial was whether Tavares had

possessed the gun that the police found in the yard at 71 Clarkson

Street. Mainly through cross-examination and argument, Tavares

sought to show that the government had not proved his possession

of the weapon beyond a reasonable doubt. To bolster this claim,

he suggested (among other things) that the police officers'

testimony about his involvement with the weapon was inconsistent;

that the weapon, when found, did not bear his fingerprints and,

thus, had not been in his hands; and that the police had rushed to

judgment. The government countered, in part, by presenting

Auclair's testimony.

After being duly qualified as a criminalist, Auclair

testified about the significance of the fact that the examination

of the gun by the police laboratory revealed only a very partial

print that was itself insufficient to implicate or exclude Tavares.

Auclair delineated the factors that affect recovery of usable

prints (including the quality of ridge skin, the texture of the

surface involved, the nature of print deposition, the treatment of

the surface after print deposition, and environmental conditions).1

After explaining the procedures used by the Unit to preserve

1 In the context of fingerprint examination, "deposition" is the
act of depositing something (such as sand, snow, or mud) on a
surface, especially over a period of time.

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prints, Auclair testified that the firearm removed from the yard

at 71 Clarkson Street did not reveal any usable prints.

So far, so good. During direct examination, however,

the prosecutor asked Auclair about the percentage of cases in which

usable prints were recovered from examined firearms, that is, what

percentage of examined guns were found to contain fingerprints

with sufficient ridge detail to allow the authorities to make an

identification. Over the defendant's objection, the court allowed

Auclair to opine, based primarily on the Unit's experience over a

period of nearly nine years, that usable prints had been recovered

from approximately 16% of firearms examined. Under cross-

examination, Auclair explained that his opinion derived in part

from a compilation of the Unit's fingerprint analyses completed by

an intern: we say "completed" because the Unit regularly kept

such data on a series of spreadsheets, and the intern had simply

updated those data and tabulated them. Auclair could not say,

however, either what procedures were used in the process of

compilation or what oversight of the intern was provided by Unit

staff. He could opine, however, that the 16% figure was generally

consistent with his own personal experience in examining hundreds

of guns. After cross-examination, Tavares moved to strike

Auclair's opinion. The court denied his motion.

On appeal, Tavares challenges the court's rulings

admitting and refusing to strike this portion of Auclair's

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testimony. Specifically, Tavares argues, first, that the

testimony lacked a proper foundation; and second, that the

testimony was both not relevant and unfairly prejudicial.

We review a trial court's decision to admit or exclude

evidence for abuse of discretion. See United States v. Pires, 642

F.3d 1, 10 (1st Cir. 2011); United States v. Stierhoff, 549 F.3d

19, 27 (1st Cir. 2008). In carrying out this task, we afford

"broad deference to the determination made by the district court

as to the reliability and relevance of expert testimony."

Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir.

2006). Absent a material error of law, we will not upset such a

determination unless it appears that the district court "committed

a meaningful error in judgment." Ruiz-Troche v. Pepsi Cola of

P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998) (quoting

Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)).

Against this backdrop, we turn first to Tavares's

argument that the challenged testimony lacked a sufficient

foundation. The touchstone for the admission of expert testimony

in federal court litigation is Federal Rule of Evidence 702. The

rule provides in relevant part that, as a precursor to giving

expert testimony, an expert must be "qualified . . . by knowledge,

skill, experience, training, or education" and must possess

specialized knowledge that "will help the trier of fact to

understand the evidence or to determine a fact in issue." Fed. R.

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Evid. 702. The rule further demands that such opinion testimony

rest on "sufficient facts or data." Id.

These requirements obligate a trial court to act as a

gatekeeper in order to ensure, as a condition of admissibility,

that proffered expert testimony rests on a sufficiently

trustworthy foundation. See Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579, 597 (1993). Where, as here, the factual basis of an

expert's testimony is called into question, the district court

must determine whether the testimony has "a reliable basis" in

light of the knowledge and experience of the relevant discipline.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999) (quoting

Daubert, 509 U.S. at 592). We, in turn, review such determinations

for abuse of discretion. See id. at 142.

Tavares does not question Auclair's credentials as a

fingerprint expert. Nor could he: Auclair earned a master's

degree in forensics, underwent additional training upon joining

the Unit, worked in the field for several years, and passed a

series of annual proficiency tests.

Expert testimony, however, can for the most part be no

better than the information provided to the expert. That principle

is summed up in the familiar phrase "garbage in, garbage out."

Tavares says that, whatever Auclair's qualifications, he lacked a

sufficiently reliable basis for offering an opinion about the rate

at which usable fingerprints appear on examined firearms.

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 This aspect of Tavares's challenge focuses on the

alleged inadequacies of the compilation of data upon which Auclair

drew in reaching his opinion about the 16% rate of usable prints

recovered from examined firearms. The last step in that

compilation was taken by an intern (not working under Auclair's

supervision), and Auclair did not profess to know what procedures

the intern had followed in compiling and tabulating the data.

Although Auclair was not aware of the specific

procedures used to compile and tabulate the data that went into

the intern's report, he made clear that the report was neither an

ad hoc nor an informal production. Rather, the report was the

latest iteration in ordinary course of a type of statistical

compilation that the Unit had periodically produced on earlier

occasions. These past reports were kept by the Unit in the

ordinary course of its operations and were based on data that the

Unit had collected and maintained in spreadsheets over a number of

years. These spreadsheets had been prepared by Unit staff

(including individuals with responsibility for technical

information within the Unit). The district court did not abuse

its discretion in finding that Auclair, given his position and

expertise, was entitled to rely on these spreadsheets. See United

States v. Corey, 207 F.3d 84, 89 (1st Cir. 2000) (approving

expert's reliance on "materials maintained at ATF 'research

libraries,' which contained information on approximately five

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thousand different firearms"); cf. United States v. Smith, 566

F.3d 410, 412 (4th Cir. 2009) (upholding admission of ATF agent's

testimony that relied on "an ATF computerized database that had

been compiled 'over many, many years as agents have done this

practice'" in response to a challenge under the best evidence

rule); Clausen v. M/V New Carissa, 339 F.3d 1049, 1059-61 (9th

Cir. 2003) (upholding expert testimony that relied on history and

reports created by others, even where there was no supported peer-

reviewed literature). The intern's report merely updated these

spreadsheets and tabulated the results, and it was within the

court's discretion to find that Auclair could reasonably rely on

that report as well.

What is more, Auclair testified that the percentage

identified in the report for the Unit as a whole was "generally

consistent" with his own long experience and that the scientific

publications he had consulted did not affect this assessment. This

testimony provided a basis for concluding that the department's

report was materially reliable. It also provided an independent

basis for the basic point being made: it was by no means unusual

to find no usable prints on a gun. On that point, it could have

hardly made any difference whether the percentage of guns found to

have usable prints was exactly 16% or "generally" 16%. All in

all, we think that it was within the district court's discretion

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to accept Auclair's determination that the updated Unit statistics

were reliable.

We likewise reject the defendant's related argument that

Auclair's testimony lacked a proper foundation because he had not

performed or supervised the work that produced the compilation.

An expert may rely on information not itself admitted into evidence

when forming an opinion. See Jones ex rel. United States v. Mass.

Gen. Hosp., 780 F.3d 479, 494 n.8 (1st Cir. 2015). So, too, an

expert may rely on information that is not independently

admissible. See Corey, 207 F.3d at 89. Nor is there any

requirement that the information relied on by an expert must have

been compiled by him or under his supervision. See Crowe v.

Marchand, 506 F.3d 13, 18 (1st Cir. 2007). And though "the

entirety of [an expert's] testimony cannot be the mere repetition

of 'the out-of-court statements of others,'" United States v. Luna,

649 F.3d 91, 105 (1st Cir. 2011) (quoting United States v. Cormier,

468 F.3d 63, 73 (1st Cir. 2006)), that was not the case here:

Auclair's reliance on the compilation represented only a small

fraction of his testimony on the subject of unusable prints and

was corroborated by his familiarity with past calculations by the

Unit and his own experience.

Tavares's embrace of our decision in United States v.

Giambro, 544 F.3d 26 (1st Cir. 2008), does not advance his cause.

There, the trial court found that the basis for the expert's

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testimony was "purely anecdotal," and was otherwise unreliable.

Id. at 33. Our affirmance of that finding as not an abuse of

discretion simply does not mean that it was an abuse of discretion

to admit Auclair's testimony that rested in its material force on

several independent, non-anecdotal grounds.

To say more on this point would be to paint the lily.

In the circumstances here, we think that any question about the

factual underpinnings of Auclair's opinion goes to its weight, not

to its admissibility. See Milward v. Acuity Specialty Prods. Grp.,

Inc., 639 F.3d 11, 22 (1st Cir. 2011). So, too, deciding whether

the data were of a type that Auclair could reasonably rely upon

under Federal Rule of Civil Procedure 703 was well within the trial

court's discretion. See Corey, 207 F.3d at 92.

The defendant's challenge to the relevance of Auclair's

testimony is equally unavailing. "Evidence is relevant if: (a)

it has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of consequence

in determining the action." Fed. R. Evid. 401. In this instance,

we think that evidence reflecting the overall rate at which usable

fingerprints are recovered from firearms was plainly relevant and

likely helpful to the jury in determining what significance, if

any, should be accorded to the absence of fingerprints on the

firearm found at 71 Clarkson Street. Surely, such evidence had a

tendency to make a fact of consequence more probable: it suggested

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that the absence of usable prints did not mean, ipso facto, that

the weapon was never in the defendant's hands, or that the police

work was shoddy. See, e.g., United States v. Burdeau, 168 F.3d

352, 356–57 (9th Cir. 1999). Seen in this light, the evidence

"assisted the jury in understanding that . . . certain objects are

not particularly conducive to finding prints." United States v.

Glover, 479 F.3d 511, 518 (7th Cir. 2007). Absent Auclair's

testimony, "the jury may not have understood how [the defendant]

could have possessed the weapon without leaving prints." Id.

In an effort to deflect the force of this reasoning,

Tavares points out that the 16% figure did not distinguish between

firearms that were subjected to the so-called "fuming" process

before they were sent to the lab (like the firearm in this case)

and those that were not.2 This omission, Tavares submits, rendered

the testimony too general to be relevant.

This argument is futile. There is simply no requirement

that statistics must in all instances separately account for every

potentially significant variable in order even to be relevant.

See Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 468-

69 (8th Cir. 2004). That is true of the "fuming" variable here.

2 As explained by Auclair, "fuming" is the process in which a
firearm is placed in a chamber filled with a heated glue substance.
The glue then adheres to the moisture in the fingerprint, hardens
the moisture, and turns the fingerprint white, rendering the print
visible and less likely to be rubbed away.

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The defendant had the right--which he exercised--to cross-examine

Auclair about the chances that the recovery percentage might differ

materially in cases in which fuming was performed earlier. No

more was exigible: after all, district courts have "broad latitude

. . . with respect to the determination of the admissibility of

expert testimony," Crowe, 506 F.3d at 18--and the limits of that

broad discretion were not exceeded here.

Tavares has a fallback position. He contends that the

challenged testimony, even if relevant, ought to have been excluded

under Federal Rule of Evidence 403. Rule 403 provides, in

pertinent part, that "[t]he court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of .

. . unfair prejudice, confusing the issues, misleading the jury,"

or the like. Fed. R. Evid. 403. The rule is addressed to the

district court's informed discretion and its due administration

recognizes that "[t]his balancing is best performed by the trial

judge, who has an intimate familiarity with the ebb and flow of

the case and with its nuances." United States v. Raymond, 697

F.3d 32, 38 (1st Cir. 2012). "[O]nly rarely--and in

extraordinarily compelling circumstances--will we, from the vista

of a cold appellate record, reverse a district court's on-the-spot

judgment concerning the relative weighing of probative value and

unfair effect." Id. (quoting Freeman v. Package Mach. Co., 865

F.2d 1331, 1340 (1st Cir. 1988)).

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 Under this generous prescription, the district court's

admission of the challenged testimony cannot be faulted. As we

have already explained, the evidence was plainly relevant.

Tavares, in turn, points to no prejudice that was so substantial

as to compel exclusion. To be sure, Auclair's opinion was

prejudicial in the sense that it aided the government's theory of

the case and diminished the force of Tavares's theory of the case.

But Rule 403 guards only against unfair prejudice, see United

States v. Benedetti, 433 F.3d 111, 118 (1st Cir. 2005), and the

probative value of this evidence, though modest, was not

substantially outweighed by any unfairly prejudicial effect.

Hence, there was no abuse of discretion in admitting that evidence.

B. Classification of Prior Offenses as "Crimes of Violence"

Under § 2K2.1(a) of the United States Sentencing

Guidelines, Tavares's prior criminal record played a substantial

role in setting his base offense level and Guidelines sentencing

range. Pursuant to § 2K2.1(a)(4), his base offense level increased

from 12 to 20, and--in Tavares's case--his sentencing range

increased from 37–46 months to 84–105 months, if he committed the

subject offense "subsequent to sustaining one felony conviction of

either a crime of violence or a controlled substance offense."

U.S.S.G. § 2K2.1(a)(4)(A). Under § 2K2.1(a)(2), his base offense

level increased by an additional four levels, and--in Tavares's

case--his sentencing range increased from 84–105 months to 120–

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150 months, if he committed the subject offense subsequent to

sustaining two such convictions.3

Over Tavares's objection, the district court found that

both of these enhancements were proper and assigned Tavares a base

offense level of 24 under these provisions. The court also adopted

the PSR's two-level enhancement because the firearm had been

stolen, U.S.S.G. § 2K2.1(b)(4)(A), resulting in a total offense

level of 26. In adopting the base offense level of 24, the district

court relied on the fact that Tavares had previously been convicted

of two offenses in Massachusetts state court: Resisting Arrest

and Assault and Battery with a Dangerous Weapon ("ABDW"). The

parties agree that neither offense is a controlled substance

offense. We must therefore determine whether the district court

properly categorized each of these state court offenses as a "crime

of violence" under the Guidelines. See U.S.S.G. § 4B1.2(a); see

also id. § 2K2.1, cmt. n.1 (adopting definition of "crime of

violence" in § 4B1.2(a)).

As relevant here, at the time of Tavares's sentencing,

the term "crime of violence" was defined as

any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that--

3 Effectively, the actual sentencing range can only increase to
120 months because his conviction under 18 U.S.C. § 922(g)(1)
carries a maximum term of imprisonment of ten years.

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 (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 involves conduct that presents
a serious potential risk of physical
injury to another.

U.S.S.G. § 4B1.2(a) (as amended Nov. 1, 2009).4 Neither party

maintains that Tavares's Resisting Arrest and ABDW offenses fall

within any of the enumerated crimes of subsection (2). The parties

further agree that Johnson v. United States (Johnson II), 135

S. Ct. 2551 (2015), should lead us to deem unconstitutionally vague

the final clause of subsection (2) (commonly referred to as the

"residual" clause). See id. at 2560, 2563; see also, e.g., United

States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (collecting

cases applying Johnson II to § 4B1.2(a)); United States v.

Calabretta, 831 F.3d 128, 137–38 (3d Cir. 2016) (reaching same

conclusion). But see Beckles v. United States, 616 F. App'x 415,

415–16 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016)

(holding Johnson II does not apply to crimes listed as crimes of

violence in the commentary to § 4B1.2); United States v. Matchett,

802 F.3d 1185, 1196 (11th Cir. 2015) (holding that the sentencing

guidelines cannot be unconstitutionally vague). We therefore

4 Section 4B1.2(a)(2) was subsequently amended on July 13, 2016 to
alter subsection (2). U.S.S.G. § 4B1.2(a)(2) (as amended July 13,
2016).

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proceed to analyze whether the prior offenses at issue qualify as

crimes of violence under subsection (1) of § 4B1.2(a), commonly

referred to as the "force" clause.

1. Resisting Arrest

The Massachusetts offense of Resisting Arrest is defined

as

knowingly prevent[ing] or attempt[ing] to
prevent a police officer, acting under color
of his official authority, from effecting an
arrest of the actor or another, by:

(1) using or threatening to use physical
force or violence against the police
officer or another; or

(2) using any other means which creates a
substantial risk of causing bodily injury
to such police officer or another.

Mass. Gen. Laws ch. 268, § 32B(a).5

The parties agree that the version of this offense set

forth in subsection (2) can no longer be considered to be a "crime

of violence" under § 4B1.2(a)(2) of the Guidelines in the wake of

Johnson II. The government argues, instead, that the version of

Resisting Arrest described in subsection (1) is a crime of violence

under the force clause according to our existing case law, United

States v. Almenas, 553 F.3d 27, 32–33 (1st Cir. 2009), and that

subsection (2) is divisible from subsection (1) within the meaning

5 Tavares was convicted of resisting arrest in 2008. The statutory
language has not changed since then.

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of Descamps v. United States, 133 S. Ct. 2276, 2284 (2013). We

should therefore remand this case, says the government, so that

the district court may consider whether documents that the

government supplies as permitted by Shepard v. United States, 544

U.S. 13, 26 (2005)6 establish that the version of Resisting Arrest

for which Tavares stood convicted was the subsection (1) version

("using or threatening to use physical force or violence against

the police officer or another," Mass. Gen. Laws ch. 268,

§ 32B(a)(1)), rather than subsection (2).

Tavares does not dispute that the two versions of the

Massachusetts Resisting Arrest offense set forth in

subsections (1) and (2) are divisible under Descamps. Nor does

Tavares disagree that remand for consideration of any Shepard

documents would be appropriate if the subsection (1) version of

the offense is a crime of violence. Instead, Tavares argues that

the subsection (1) version of the Resisting Arrest offense itself

fails to qualify categorically as a crime of violence.

In making this argument, Tavares correctly concedes that

we have previously held precisely to the contrary; that is, that

the subsection (1) version of the Massachusetts Resisting Arrest

offense is a crime of violence under the force clause. See United

6 Shepard documents include documents "from the convicting court,
such as charging documents, plea agreements, plea colloquies, and
jury instructions." United States v. Serrano-Mercado, 784 F.3d
838, 843 (1st Cir. 2015).

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States v. Weekes, 611 F.3d 68, 72–73 (1st Cir. 2010), cert. denied

564 U.S. 1021 (2011); Almenas, 553 F.3d at 33. Tavares

nevertheless points out that these prior opinions did not consider

the impact of Johnson v. United States (Johnson I), 559 U.S. 133

(2010), which held that the term "physical force" under the force

clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C.

§ 924(e)(2)(B)(i), requires "violent force," meaning "force

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

Johnson I, 559 U.S. at 140. That holding, the parties do not

dispute, also applies to the identical phrase at issue here under

§ 4B1.2 of the Guidelines. See, e.g., United States v. Castro-

Vazquez, 802 F.3d 28, 37–38 (1st Cir. 2015); United States v.

Carrigan, 724 F.3d 39, 50 (1st Cir. 2013). Because subsection (1)

requires "physical force or violence," reasons Tavares, we should

hold that it does not necessarily require "violent force," and

hence the offense described in subsection (1) fails to qualify as

a crime of violence under Johnson I.

Although we are generally bound by prior panel decisions

on point, we may depart from circuit precedent if the prior holding

is "contradicted by controlling authority,
subsequently announced (say, a decision of the
authoring court en banc, a Supreme Court
opinion directly on point, or a legislative
overruling)," or in "those relatively rare
instances in which authority that postdates
the original decision, although not directly
controlling, nevertheless offers a sound
reason for believing that the former panel, in

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 light of fresh developments, would change its
collective mind."
United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011) (citations

omitted). It is also true that we decided Almenas before Johnson

I construed "physical force" as used in the ACCA to require

"violent force." Almenas, however, did not rest on the assumption

that physical force meant something other than violent force. To

the contrary, in addressing the defendant's argument that some

conduct that fell under both subsections of the Resisting Arrest

statute was non-violent, we described that conduct (stiffening

one's arm to avoid being handcuffed) as something that could not

be characterized as "non-violent." Almenas, 553 F.3d at 35. No

controlling authority issued after Almenas and Weekes contradicts

our holdings in those cases. So Tavares must argue that post-

dated authority that is not directly controlling "nevertheless

offers a sound reason" for concluding that we would have reached

a different result had we known what we know now. Pires, 642 F.3d

at 9.

Tavares makes a plausible point that one might read

"physical force or violence" in the Resisting Arrest statute as

suggesting that "physical force" means something other than

violence. That point, though, was as valid when Almenas was

decided as it is today. Moreover, Johnson I itself construed the

term "physical force" as used in the ACCA to mean "violent force."

We also see nothing in the Massachusetts case law to which Tavares

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points indicating that the element of "physical force or violence"

is satisfied by a degree of physical force that would not equal or

exceed the ACCA's "physical force." In Commonwealth v. Katykhin,

794 N.E.2d 1291 (Mass. App. Ct. 2003), the defendant refused to

get into a police cruiser, stood "rigid, upright, almost like a

plank of wood," and "began to pull away [from the police officer],

starting a tug of war." Id. at 1292. In Commonwealth v. Joyce,

998 N.E.2d 1038 (Mass. App. Ct. 2013), the defendant was "shouting

and struggling to pull his arms forward to maintain a fighting

stance with [a third party]" while an officer placed him under

arrest. Id. at 1044. He then refused to move his feet as two

officers tried to bring him to the police cruiser "pushing

backwards and straining to turn so that he could shout at

bystanders." Id. at 1041, 1044. In Commonwealth v. Maylott, 841

N.E.2d 717 (Mass. App. Ct. 2006), the defendant was "moving his

arms, flailing as he was yelling and screaming" when the officers

tried to handcuff him. Id. at 718. When one officer took hold of

his right hand, he stiffened his arm and refused to turn around or

put his hands behind his back. Id.

It certainly seems reasonable to view the foregoing

conduct as involving in each instance a use or threatened use of

force sufficient to cause pain or injury so as to qualify under

the force clause as construed in Johnson I. Whether we would so

conclude in the absence of binding precedent, we need not decide.

- 22 -
Rather, we need only decide--and do decide--that this appeal does

not present one of those rare occasions in which we might set aside

controlling circuit precedent.

That leaves only the question whether the government

should have the opportunity on remand to supplement the record

with Shepard documents, assuming such documents exist and would

pin Tavares's conviction firmly under Massachusetts Resisting

Arrest subsection (1), rather than (2). Tavares does not argue

that the government should not have such an opportunity. Here,

importantly, the record was sufficient to sustain the government's

position at the time of sentencing without any need to present

Shepard documents, and we remand for reconsideration of that

sentence only because the controlling law on the residual clause

thereafter changed. Under such circumstances, supplementation of

the record for sentencing on remand is appropriate.

2. ABDW

Chapter 265, § 15A(b) of Massachusetts General Laws sets

forth the maximum term of incarceration and fine that may be

imposed on a person "[w]ho[] commits an assault and battery upon

another by means of a dangerous weapon." Mass. Gen. Laws ch. 265,

§ 15A(b).7 The substantive definition of ABDW, in turn, is supplied

by case law applying the crime's common law definition. See

7 Tavares was convicted of ABDW in 2009. The relevant portion of
the statutory language has not changed since then.

- 23 -
Commonwealth v. Porro, 939 N.E.2d 1157, 1162 (Mass. 2010);

Commonwealth v. Burno, 487 N.E.2d 1366, 1368-69 (Mass. 1986). In

Burno, the Supreme Judicial Court of Massachusetts ("SJC") applied

the common law definition of simple assault and battery to describe

"two separate aspects to the crime" of ABDW. 487 N.E.2d at 1368.

These "separate aspects" both require the use of a dangerous weapon

and are described as follows:

[(1)] "the intentional and unjustified use of
force upon the person of another,
however slight," or

[(2)] the intentional commission of a wanton
or reckless act . . . causing physical
or bodily injury to another.

Id. at 1368–69 (citations omitted). For ease of reference given

the numerous sections and subsections described in the opinion, we

refer to these two forms of the offense as Massachusetts ABDW

sections (1) and (2).

Tavares makes two principal arguments in challenging the

district court's classification of this offense as a "crime of

violence" under § 4B1.2(a)(1) of the Guidelines. Relying on this

court's opinion in United States v. Fish, 758 F.3d 1 (1st Cir.

2014), he argues that ABDW under Massachusetts law is categorically

not a "crime of violence" under § 4B1.2(a)(1) because (1)

Massachusetts ABDW section (1)--"the intentional and unjustified

use of force upon the person of another, however slight"--may be

committed without employing the necessary "violent force" required

- 24 -
by Johnson I, and (2) Massachusetts ABDW section (2)--"the

intentional commission of a wanton or reckless act . . . causing

physical or bodily injury to another"--may be committed with a

reckless, as opposed to an intentional, mens rea. Tavares also

argues that, if he is correct that even one of these versions of

ABDW does not qualify as a crime of violence, he must then prevail

because Massachusetts ABDW is not elementally divisible into

multiple offenses and thus is not subject to the modified

categorical approach aimed at determining which version of the

offense was the version for which he was previously convicted.

See generally Descamps, 133 S. Ct. at 2281-82; United States v.

Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015), petition for

cert. docketed, No. 16-0237 (Aug. 24, 2016); accord Mathis v.

United States, 136 S. Ct. 2243, 2248–49 (2016).

In Fish, we did indeed observe that the government, "with

good reason," declined to argue that Massachusetts ABDW section

(1) qualifies as a crime of violence under the force clause of 18

U.S.C. § 16(a), which is substantially identical to the force

clause here, U.S.S.G. § 4B1.2(a)(1). Fish, 758 F.3d at 9. The

reason, we observed, was that "ABDW may be accomplished by a mere

'touching, however slight,'" id. (quoting United States v. Hart,

674 F.3d 33, 42 (1st Cir. 2012)), and therefore did not involve

the use of physical force, id.

- 25 -
 Nevertheless, in United States v. Whindleton, 797 F.3d

105 (1st Cir. 2015), cert. dismissed, No. 15-9653, 2016 WL 3199031

(Aug. 19, 2016), and cert. denied, No. 16-5101, 2016 WL 3633306

(Oct. 3, 2016), the government advanced the argument it eschewed

in Fish, and we turned our focus from the ACCA's "use . . . of

physical force" to its "attempted . . . or threatened use of

physical force" criterion, finding that a mere touching with a

dangerous weapon constituted an attempted or threatened use of

physical force. Id. at 113–16; see also United States v. Hudson,

823 F.3d 11, 16 (1st Cir. 2016) (reaffirming Whindleton). We have

extended the holding in Whindleton from the force clause of the

ACCA to the force clause of U.S.S.G. § 4B1.2(a). See United States

v. Fields, 823 F.3d 20, 33–35 (1st Cir. 2016). Although Whindleton

was convicted of assault with a dangerous weapon ("ADW"), Mass.

Gen. Laws ch. 265, § 15B(b), rather than ABDW like Tavares, ADW is

a "lesser included offense" of ABDW section (1). See Porro, 939

N.E.2d at 1165–66; Commonwealth v. Appleby, 402 N.E.2d 1051, 1059

(Mass. 1980). Therefore, no more "force"--whether attempted,

threatened, or actually used--could be required for ADW than ABDW

section (1). See United States v. Maxwell, 823 F.3d 1057, 1061

(7th Cir. 2016) (relying on level of force required by lesser-

included offense to conclude that a prior state court conviction

qualified under force clause of § 4B1.2(a)), cert. denied, No. 16-

6072, 2016 WL 5357418 (Oct. 31, 2016). Thus, Whindleton's holding

- 26 -
means that ABDW section (1) qualifies as a crime of violence under

the ACCA. Whindleton, 797 F.3d at 113-16. No decision since

Whindleton calls that conclusion into question or suggests any

reason why that conclusion should not apply equally to U.S.S.G.

§ 4B1.2(a)(1). For this reason, and tracking our holding in

Whindleton rather than the government's concession in Fish, we

hold that Massachusetts ABDW section (1)--"the intentional and

unjustified use of force upon the person of another, however

slight"--constitutes a crime of violence under § 4B1.2(a)(1) of

the Guidelines. See Fields, 823 F.3d at 35 n.12 (not following as

dicta Fish's observation about Massachusetts ABDW section (1)).

That holding leaves two questions: Is Massachusetts

ABDW section (2)--"the intentional commission of a wanton or

reckless act . . . causing physical or bodily injury to another"

--also a crime of violence? If not, is Massachusetts' definition

of ABDW divisible? We address the divisibility question first.

Ultimately, we conclude that the statute is divisible and remand

the case to the district court to determine whether Tavares was

convicted under Massachusetts ABDW section (1) without deciding

whether Massachusetts ABDW section (2) is also a crime of violence.

In Fish, this court posited that if Massachusetts had

set forth the elements of each "aspect" of ABDW by statute, rather

than in case law, it would read as follows:

- 27 -
 Assault and Battery with a Dangerous Weapon
is:

(1) The intentional and unjustified touching
of another by use of a dangerous weapon,

or,

(2) The intentional commission of a wanton or
reckless act [with a dangerous weapon]
causing more than transient or trifling
injury to another.

Fish, 758 F.3d at 15. This offense reads as a divisible statute,

one which "list[s] elements in the alternative, and thereby

define[s] multiple crimes." Mathis, 136 S. Ct. at 2249. One set

of elements requires a heightened mens rea--intentional conduct--

but only slight contact. Burno, 487 N.E.2d at 1368–69. The other

set requires merely reckless behavior but an injury that

"interfered with the health or comfort of the victim." Id. at

1370. Which set of elements a jury would have to find in order to

convict would depend upon which form of ABDW the government

advanced at trial.

Tavares, however, points us to decisions from the

state's intermediate appellate court--the Appeals Court of

Massachusetts--which hold that jurors need not be unanimous as to

the form of assault and battery of which it convicts a defendant.

See Commonwealth v. Mistretta, 995 N.E.2d 814, 815–16 (Mass. App.

Ct.) (per curiam), rev. denied, 996 N.E.2d 881 (Mass. 2013); see

also Commonwealth v. Frith, No. 15-P-0364, 2016 WL 3659906, at *2

- 28 -
(Mass. App. Ct. July 8, 2016) (unpublished opinion). In Mistretta,

the court found that the two forms of assault and battery "are

closely related subcategories of the same crime," and thus

"[s]pecific unanimity is not required, because they are not

'separate, distinct, and essentially unrelated ways in which the

same crime can be committed.'" 995 N.E.2d at 815–16 (quoting

Commonwealth v. Santos, 797 N.E.2d 1191, 1197 (Mass. 2003),

overruled on other grounds by Commonwealth v. Anderson, 963 N.E.2d

704, 718 (Mass. 2012)). Based on Mistretta, the 2016 version of

the Criminal Model Jury Instructions for Assault and Battery, while

laying out the elements for both "Intentional Assault and Battery"

and "Reckless Assault and Battery," instruct that "[n]o verdict

slip or specific unanimity instruction [is] required where both

intentional and reckless assault and battery are alleged."

Massachusetts Criminal Model Jury Instructions for Use in the

District Court, Instruction 6.140, at 6 n.1 (June 2016), available

at http://www.mass.gov/courts/docs/courts-and-

judges/courts/district-court/jury-instructions-criminal/6000-

9999/6140-assault-and-battery.pdf.8

8 We note, however, that the model jury instructions for ABDW still
state that "[i]f both the intentional and reckless theories of
culpability are submitted to the jury, the judge must provide the
jury with a verdict slip to indicate the theory or theories on
which the jury bases its verdict and is required, on request, to
instruct the jurors that they must agree unanimously on the theory
of culpability." Massachusetts Criminal Model Jury Instructions
for Use in the District Court, Instruction 6.300, at 6 (2009 ed.),

- 29 -
 We are not bound by a decision of a state intermediate

appellate court, though such a decision "generally constitutes a

reliable piece of evidence" concerning a state-law question.

Noviello v. City of Boston, 398 F.3d 76, 91 (1st Cir. 2005).

Where, as here, the state's highest court--the SJC--"has not spoken

directly to an issue, [we] must make an informed prophecy as to

the state court's likely stance." Andrew Robinson Int'l, Inc. v.

Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).

We first consider whether Mistretta's holding is

relevant to the divisibility inquiry before deciding whether it

accurately reflects Massachusetts state law. The precise question

before us is whether the differing items involved in committing

each form of the offense--intentional versus reckless mens rea;

slight contact versus bodily injury--"merely specif[y] diverse

means of satisfying a single element of a single crime," or

constitute "elements in the alternative, . . . thereby defin[ing]

multiple crimes." Mathis, 136 S. Ct. at 2249. Whether

Massachusetts requires that jurors unanimously agree on the form

of ABDW under which they are convicting a defendant informs this

analysis because the Supreme Court and this court have repeatedly

stated that jurors must unanimously find that the government proved

available at http://www.mass.gov/courts/docs/courts-and-
judges/courts/district-court/jury-instructions-criminal/6000-
9999/6300-assault-and-battery-by-means-of-a-dangerous-
weapon.pdf.

- 30 -
all "elements" of an offense beyond a reasonable doubt to convict

a defendant. See id. at 2248 ("[Elements] are what the jury must

find beyond a reasonable doubt to convict the defendant . . . .

Facts, by contrast, are mere real-world things--extraneous to the

crime's legal requirements."); Descamps, 133 S. Ct. at 2288 ("The

Sixth Amendment contemplates that a jury . . . will find [] facts

[about the defendant's conduct] unanimously and beyond a

reasonable doubt. And the only facts the court can be sure the

jury so found are those constituting elements of the offense . .

. ."); id. at 2298 (Alito, J., dissenting) ("The feature that

distinguishes elements and means is the need for juror agreement

. . . ."); Richardson v. United States, 526 U.S. 813, 817 (1999);

Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality opinion);

United States v. LaPlante, 714 F.3d 641, 647 (1st Cir. 2013).

State law as to what facts a jury must agree upon

unanimously plays a crucial role in distinguishing between

elements and mere factual means.9 See Mathis, 136 S. Ct. at 2250

("[The locations listed in the Iowa burglary statute] lay out

alternative ways of satisfying a single locational element, as the

Iowa Supreme Court has held: Each of the terms serves as an

'alternative method of committing [the] single crime' of burglary,

9 Before Mathis, the circuits were split on this question. See
Almanza-Arenas v. Lynch, 815 F.3d 469, 479–81 (9th Cir. 2016) (en
banc) (recognizing circuit split).

- 31 -
so that a jury need not agree on which of the locations was actually

involved." (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa

1981))). Thus, if Mistretta accurately reflects Massachusetts

state law, it means that Massachusetts ABDW is indivisible.

We must therefore predict how the SJC would decide

whether a specific unanimity instruction is required in an ABDW

prosecution, using Mistretta as a reliable piece of evidence.

Mistretta applied the standard set forth by the SJC in Santos for

determining when jury unanimity is required. In Santos, the

defendant claimed that the trial judge had erred by refusing to

give a specific unanimity instruction with respect to the

indictment charging armed robbery. 797 N.E.2d at 1194. He argued

that whether he had used force on the victim or had merely placed

the victim in fear constituted different "theories" of the assault

element of armed robbery, thus requiring specific unanimity. Id.

at 1196. The SJC disagreed and held that a specific unanimity

instruction was not required. Id. at 1198.

Santos reached this holding on the basis of three

intermediate conclusions. First, a specific unanimity instruction

is only required when there is more than one "theory" of guilt for

a charged crime, and the alternative "theories" are "substantively

distinct or dissimilar." Santos, 797 N.E.2d at 1197–98. Second,

two "alternate method[s] by which a single element may be

established" that are "closely related" are not substantively

- 32 -
distinct or dissimilar. Id. Third, "actual force" and "threat of

force" are closely related factual means of satisfying a single

element. Id. at 1198. The second and third conclusions indicate

that actual force and threat of force are not substantively

distinct or dissimilar. Thus, by the first conclusion, a specific

unanimity instruction was not required.

Dictum in the Santos opinion clarifies that, in

determining whether two forms of an offense are "substantively

distinct or dissimilar" theories or "closely related" methods of

proving the same elements, courts should consider the mens rea

requirements of the two forms of the offense. The SJC offered

manslaughter as an example of a crime that may be proved by two

different theories that are "substantively distinct or

dissimilar"--namely, voluntary manslaughter and involuntary

manslaughter. Id. at 1197. Under Massachusetts law, "voluntary

manslaughter is an intentional killing, which is mitigated by

extenuating circumstances,'" Commonwealth v. Squailia, 706 N.E.2d

636, 642 (Mass. 1999) (emphasis omitted), while "[i]nvoluntary

manslaughter is an unintentional, unlawful killing caused by

wanton or reckless conduct," Commonwealth v. Earle, 937 N.E.2d 42,

48 (Mass. 2010). The Santos opinion concluded that voluntary and

involuntary manslaughter were not closely related because of their

different mens rea requirements. 797 N.E.2d at 1197 ("[V]oluntary

and involuntary manslaughter are mutually exclusive--one cannot

- 33 -
kill both intentionally and unintentionally at the same time.").

This conclusion could apply equally to Massachusetts ABDW section

(1) and Massachusetts ABDW section (2), which, like the two forms

of manslaughter, differ in that one requires intent while the other

requires recklessness. Thus, this dictum from Santos indicates

that Mistretta was wrongly decided.

Mistretta, however, also drew support from a later SJC

opinion, Porro, 939 N.E.2d 1157, which complicates the analysis.

Porro addressed the relationship between two different types of

assault: attempted battery assault and threatened battery

assault. The court held that "[a]n assault under a theory of

attempted battery . . . has elements different from an assault

under a theory of threatened battery." Id. at 1163. The elements

of attempted battery assault are that "the defendant 'intended to

commit a battery, took some overt step toward accomplishing that

intended battery, and came reasonably close to doing so.'" Id.

(citation omitted). The elements of threatened battery assault

are "that the defendant engaged in conduct that a reasonable person

would recognize to be threatening, that the defendant intended to

place the victim in fear of an imminent battery, and that the

victim perceived the threat." Id.

Although these two forms of assault have different

elements, Porro contains a statement (itself also dictum) that a

specific unanimity instruction is not required in prosecutions for

- 34 -
assault. Id. at 1165–66. This statement, if adopted, would extend

Santos's holding as to the assault element of robbery to the

substantive crime of assault:

Because attempted battery and threatened
battery "are closely related," we do not
require that a jury be unanimous as to which
theory of assault forms the basis for their
verdict; a jury may find a defendant guilty of
assault if some jurors find the defendant
committed an attempted battery (because they
are convinced the defendant intended to strike
the victim and missed) and the remainder find
that he committed a threatened battery
(because they are convinced that the defendant
intended to frighten the victim by threatening
an assault).

Porro, 939 N.E.2d at 1165 (quoting Santos, 797 N.E.2d at 1197);

see also Commonwealth v. Arias, 939 N.E.2d 1169, 1173–74, 1173 n.2

(Mass. App. Ct. 2010).

Porro's dictum is in tension with United States Supreme

Court precedent. Under a literal reading, Porro states that the

two forms of assault have different elements and that a jury may

convict a defendant of assault without agreeing unanimously about

which elements of the crime were satisfied. Such a holding would

contradict the definition of "element" as it is used by the Supreme

Court. See, e.g., Mathis, 136 S. Ct. at 2250. While we could

reject the SJC's conclusion about the specific unanimity

requirement for assault as dictum, we note that it has been

incorporated into the model jury instructions for assault. See

Massachusetts Criminal Model Jury Instructions for Use in the

- 35 -
District Court, Instruction 6.120, at 4 n.9 (2009 ed.), available

at http://www.mass.gov/courts/docs/courts-and-

judges/courts/district-court/jury-instructions-criminal/6000-

9999/6120-assault.pdf. Thus, we conclude that the Porro opinion

uses the word "element" differently than the Supreme Court. Under

the Supreme Court's usage, Porro's dictum that a specific unanimity

instruction is not required in prosecutions for assault implies

that the two forms of assault are alternative means of proving the

same elements.10

Porro is also in tension with the dictum from Santos

from which we concluded that Mistretta was wrongly decided. Like

the example of voluntary and involuntary manslaughter, the two

forms of assault considered in Porro have different mens rea

requirements. Attempted battery requires an intent to commit a

battery, while threatened battery requires an intent to place the

victim in fear of an imminent battery. Porro, 939 N.E.2d at 1163.

These two mens rea requirements are more closely related than

intent and recklessness, however. While "one cannot kill both

intentionally and unintentionally at the same time," Santos, 797

N.E.2d at 1197, one could easily intend both to commit a battery

10 This interpretation of Porro is consistent with the central
holding of that opinion, which is that both forms of assault are
generally lesser included offenses of assault and battery, even
though the "elements" of assault and battery and threatened battery
do not overlap in the way that is usually required. See Porro,
939 N.E.2d at 1165.

- 36 -
and to place a victim in fear of an imminent battery. Therefore,

Porro does not alter the conclusion we reached above. We predict

that the SJC would not follow Mistretta.

This conclusion is compatible with the language the

United States Supreme Court has used to distinguish elements from

mere facts. Whether one commits ABDW with an intentional or

reckless mens rea carries with it an important legal consequence:

it changes the required result of the battery needed for a

conviction. If the actor intentionally uses force upon another,

no injury must be proven, but if the actor intends only to commit

conduct that is reckless, physical or bodily injury must be proven.

Burno, 487 N.E.2d at 1368–69. The differences in the two forms of

Massachusetts ABDW--intentional versus reckless mens rea, slight

touching versus bodily injury--are substantively distinct and

therefore constitute alternative elements, rather than different

factual means of establishing a single set of elements. See

Mathis, 136 S Ct. at 2248 ("Facts . . . . are 'circumstance[s]' or

'event[s]' having no 'legal effect [or] consequence.'" (quoting

Black's Law Dictionary 709 (10th ed. 2014))). Accordingly, we

find that the crime of Massachusetts ABDW is divisible.

Of course, given our finding that Massachusetts ABDW

section (1) is a crime of violence, our conclusion that ABDW is

divisible only makes a difference if Massachusetts ABDW

section (2)--the reckless version of ABDW--is not a crime of

- 37 -
violence. Prior to the Supreme Court's recent decision in Voisine

v. United States, 136 S. Ct. 2272 (2016), precedent directly

dictated that the reckless, unintentional causing of injury, such

as unintentionally hitting a pedestrian while driving recklessly,

was not a crime of violence under 18 U.S.C. § 16(b).11 See Fish,

758 F.3d at 10–14. Our holding in Fish was based on the reasoning

of Leocal v. Ashcroft, 543 U.S. 1 (2004), which interpreted the

phrase "use . . . physical force against the person or property of

another" to require "active employment." 543 U.S. at 9; see also

Fish, 758 F.3d at 9-10. Such reasoning would seem to apply equally

to the pertinent Guidelines definition of a crime of violence at

issue here. Thus, Fish would dictate that a conviction for the

reckless version of ABDW is not a crime of violence under U.S.S.G.

§ 4B1.2(a)(1). Voisine, though, calls into question the continuing

validity of Fish, as well as the similar and analogous holdings of

at least ten other circuits. See Fish, 758 F.3d at 9-10, 10 n.4

(listing cases).

In Voisine, the Supreme Court held that 18 U.S.C.

§ 922(g)(9)'s prohibition against gun possession for persons

convicted "of a misdemeanor crime of violence" extended to persons

11Section 16(b) provides that "any . . . offense that is a felony
and that, by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the
course of committing the offense" is a crime of violence. 18
U.S.C. § 16(b).

- 38 -
convicted of such an offense even under a reckless theory of mens

rea. 136 S. Ct. at 2282. It reasoned that the word "use" in

18 U.S.C. § 921(a)(33)(A), which defines the term "misdemeanor

crime of domestic violence" as including a misdemeanor that "has,

as an element, the use or attempted use of physical force,"

encompasses "an act of force carried out in conscious disregard of

its substantial risk of causing harm," i.e., reckless conduct.

136 S. Ct. at 2279. The government contends that this reasoning

applies equally in interpreting the word "use" in § 4B1.2(a)(1) of

the Guidelines.

That this contention is correct, however, is not

entirely clear. As Tavares points out, Voisine itself specifically

left open the question whether reckless conduct is encompassed in

the similar statutory language found in 18 U.S.C. § 16. See

Voisine, 136 S. Ct. at 2280 n.4. And in reaching its conclusion,

the Court also relied upon the history and purpose of § 922(g)(9),

explaining that a contrary finding "would have undermined

Congress's aim," id. at 2281, to prohibit domestic abusers from

possessing firearms in light of the fact that "a significant

majority of jurisdictions . . . defined such misdemeanor offenses

to include the reckless infliction of bodily harm," id. at 2280.

Indeed, Voisine recognizes in a footnote that "[c]ourts have

sometimes given [§ 921(a)(33)(A) and § 16] divergent readings in

light of differences in their contexts and purposes, and we do not

- 39 -
foreclose that possibility with respect to their required mental

states." Id. at 2280 n.4. Further muddying the waters is the

different statutory language used in each statute: § 921(a)(33)(A)

refers only to the "use of physical force," 18 U.S.C.

§ 921(a)(33)(A)(ii), whereas § 4B1.2(a)(1) of the Guidelines

refers to the "use of physical force against the person of

another," U.S.S.G. § 4B1.2(a)(1) (emphasis added). See Leocal,

543 U.S. at 9 ("Whether or not the word 'use' alone supplies a

mens rea element, the parties' primary focus on that word is too

narrow . . . . The critical aspect of § 16(a) [in determining

that it excludes negligent or accidental conduct] is that a crime

of violence is one involving the 'use . . . of physical force

against the person or property of another.'"). But see Voisine,

136 S. Ct. at 2279 (stating that the quoted reasoning from Leocal

"fully accords with our analysis here").

Even a careful reader of this opinion may at this point

feel lost. We began with a seemingly simple question. Has Tavares

been convicted of a crime of violence? Trying to answer that

question then led us down several rabbit holes: Is Massachusetts

ABDW a divisible offense under Descamps and Mathis? How does

Massachusetts law define the relationship between the two common

forms of the offense? Does Voisine upend the circuits' wide

consensus that recklessly causing injury is different than using

force against a person?

- 40 -
 In a sensible world, Congress and/or the Sentencing

Commission would have made a list of state and federal laws deemed

to be crimes of violence that warranted the desired penalties and

sentencing enhancements. At its margins, such a list might be

over- or under-broad. It would, though, be straightforward.

Instead of using a simple list, the drafters adopted

abstract descriptions of the crimes that would appear on such a

list, employing terms such as "physical force," "use," "injury,"

and so on. The result is a Rube Goldberg jurisprudence of

abstractions piled on top of one another in a manner that renders

doubtful anyone's confidence in predicting what will pop out at

the end. Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 483–84 (9th

Cir. 2015) (en banc) (Owens, J., concurring).

What pops out matters a great deal. In Fish, one could

not know whether certain conduct was lawful or criminal unless one

knew whether a prior crime was a crime of violence. Here, Tavares

could not know--within years--the guidance applicable to his

sentencing. Nor could one get confident answers by asking a

lawyer--or even a judge. So what do we do here? For three reasons,

we stop short of finally deciding now whether a conviction under

the reckless version of ABDW qualifies as a crime of violence.

First, the Supreme Court has granted certiorari in

Beckles v. United States, 616 F. App'x 415 (11th Cir. 2015), cert.

granted, 136 S. Ct. 2510 (2016). Although the Eleventh Circuit

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decided that case on the narrow ground that Johnson II did not

apply to a career offender enhancement based on the Guidelines

commentary to § 4B1.2, id. at 415–16, the petition for certiorari

raised the much broader question as to whether Johnson II applies

to the residual clause of § 4B1.2(a)(2). See Petition for Writ of

Certiorari at i, Beckles v. United States, No. 15-8544 (U.S. Mar.

9, 2016), 2016 WL 3476563. The Supreme Court granted the petition

in full, 136 S. Ct. 2510, 2510, and thus may well answer this

broader question. If the Court decides that Johnson II does not

so apply, then the district court may consider if it can once again

rely on the residual clause or if the government has forfeited any

reliance on that clause by conceding the issue on appeal.

Second, even if Beckles does not put the residual clause

back in play in this case, it will only be necessary to decide

whether the reckless version of ABDW is a crime of violence if

there are no Shepard documents that make clear that Tavares's ABDW

conviction was for the intentional version of the offense. As

Tavares noted in his supplemental brief, the Massachusetts

district court criminal model jury instructions, at least prior to

this year, instructed Massachusetts courts to use a jury verdict

form for ABDW charges that would plainly reveal which version of

the offense was the offense of conviction.12 Common sense suggests,

12 They may still do so for ABDW, though not for assault and
battery. See note 8, supra.

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too, that by far the most common version of the offense charged is

the intentional version. In sum, whether the reckless version of

ABDW is also a crime of violence will likely not make any

difference in this case.

Third, in the event that it does make a difference, the

parties will be able to brief the issue and the district court--

for the first time--will be able to consider it. We, in turn,

will then have the benefit of a fully developed record, the

district court's views, and likely more precedent to consider as

we and other courts encounter the "recklessness" question in other

cases in which the answer does make a difference. We therefore

remand to the district court to allow the government the

opportunity to put forth Shepard documents that clarify whether

Tavares's ABDW conviction was for the intentional or reckless

version of the offense.

CONCLUSION

We affirm Tavares's conviction, but remand for

reconsideration of his sentence consistent with this opinion. If

the district court concludes that either the Resisting Arrest

conviction or the ABDW conviction did not qualify under the career

offender guideline, it should vacate and resentence. Otherwise,

it should vacate and then re-enter the present sentence.

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