United States v. Starks, Jr.

United States Court of Appeals
For the First Circuit

No. 15-2365

UNITED STATES OF AMERICA,

Appellee,

v.

FOSTER L. STARKS, JR.,

Defendant, Appellant.

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

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Kayatta, Circuit Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

Victoria R. Kelleher for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

June 28, 2017

* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 KAYATTA, Circuit Judge. This case makes its second

appearance on our docket. The first appeal followed the conviction

of Foster Starks, Jr. for possessing a firearm in violation of 18

U.S.C. § 922(g)(1). We vacated that conviction because the

district court erred in finding that Starks lacked standing to

challenge the lawfulness of a traffic stop that led to his arrest

and the discovery of a gun and ammunition in a car he was driving.

See United States v. Starks (Starks I), 769 F.3d 83, 88–90 (1st

Cir. 2014). On remand, the district court adjudicated Starks's

challenge to the traffic stop on its merits, ruling that the stop

and the resulting search were lawful. Following a second jury

trial, Starks was again convicted. He now asks that we set aside

this conviction because the trial judge, Starks claims,

effectively commented on the credibility of witnesses by telling

the jurors that the judge had ruled prior to trial that the traffic

stop was lawful. Starks also contends that the district court

erred in determining that he was subject to a 180-month mandatory

minimum sentence under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e), on account of three prior convictions for the

offense of armed robbery under Massachusetts law. For the

following reasons, we affirm Starks's conviction but vacate his

sentence.

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 I.

A.

Starks's challenge to his conviction rests on a jury

instruction. Starks does not claim that the instruction in any

way misstated the law. Rather, he claims that when the trial judge

told the jury that the judge had already found the police officer's

stop of Starks to be lawful, the judge effectively commented on

the credibility of the two key witnesses at trial and put

additional facts before the jury that bore on the witnesses'

credibility. Judicial comments on the credibility of a witness in

a criminal trial before a jury are improper. See, e.g., United

States v. Márquez–Pérez, 835 F.3d 153, 158 (1st Cir. 2016); United

States v. Ayala-Vazquez, 751 F.3d 1, 28 (1st Cir. 2014). So, too,

are judicial statements adding information to the record that bears

on a witness's credibility. See, e.g., Quercia v. United States,

289 U.S. 466, 471–72 (1933); United States v. Cisneros, 491 F.2d

1068, 1075 (5th Cir. 1974). So we begin our inquiry by determining

whether the trial court's instruction, in context, could be so

understood by the jurors. Cf. United States v. Rivera-Rodríguez,

761 F.3d 105, 120–23 (1st Cir. 2014) (reviewing the record to

determine if the trial judge's interventions created the

appearance of bias). Toward that end, we summarize enough of the

relevant evidence to allow us to gauge how the jurors might

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reasonably have construed the instruction and, if necessary, how

much and to what degree of likelihood prejudice1 would have ensued.

On May 24, 2009, at around 10:00 or 11:00 P.M., Starks

pulled over in the breakdown lane on Route 24 in Taunton,

Massachusetts. He was driving a black Kia Sportage with the

permission of an acquaintance who had rented the vehicle. Jason

Vital, a Massachusetts state trooper, pulled over behind him, got

out of his cruiser, and approached Starks's vehicle. When Starks

exited the vehicle, Vital asked him if anything was wrong. Starks

responded that he had just dropped a cigarette. Vital testified

that Starks appeared nervous during this interaction; Starks

testified that he was not nervous. After Starks retrieved his

cigarette, he and Vital returned to their respective vehicles and

pulled back onto Route 24.

Vital started following Starks. Vital testified that he

noticed Starks drifting slightly into the next lane without

signaling on three occasions. Starks testified, to the contrary,

that he stayed in his lane and did not drift. Vital used his

1
The parties disagree about what standard we should apply to
determine whether reversal is necessary if we conclude that the
district court commented on the credibility of witnesses. Some of
our cases on this type of judicial error require serious prejudice,
see Márquez–Pérez, 835 F.3d at 161–62; Rivera-Rodríguez, 761 F.3d
at 123, while another applies multiple different standards,
including the "harmless beyond a reasonable doubt" standard, see
Ayala-Vazquez, 751 F.3d at 24-28. Because we conclude that the
trial court's instruction did not comment on the credibility of
witnesses, we need not resolve this apparent tension.

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computer to check the registration on Starks's car and discovered

that the car was registered to a rental company and listed as red

rather than black. At that point, Vital pulled Starks over. Vital

testified without contradiction that the color discrepancy alone

justified pulling Starks over.

Vital approached Starks's driver's-side window and

informed him that the registration indicated that Starks's car was

red rather than black.2 Starks responded that the car was a rental.

Vital asked for Starks's license and registration, which Starks

provided. On checking the status of Starks's license, Vital

learned that it had been suspended for failure to pay a ticket.

He placed Starks under arrest for driving with a suspended

license.3 Vital testified that after he asked Starks to exit the

vehicle, Starks's "nervous level had grown exponentially." Starks

testified that he was not nervous. After securing Starks in the

back seat of the cruiser, Vital requested a tow of the rental car

pursuant to state police policy. He then looked through the

windows of the car with a flashlight. He saw a white Wal-Mart bag

containing a box of ammunition in the front passenger's seat. He

2There was a discrepancy between Vital's testimony and
Starks's testimony as to whether Vital mentioned the marked lanes
violation when he pulled Starks over.
3Vital also suggested at trial that Starks's failure to
present a user agreement from the rental car company indicated
that he was not authorized to drive the vehicle.

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opened the car door and searched the bag, whereupon he found more

ammunition and a firearm wrapped in a black bandana.

Following our decision in Starks I, and prior to trial,

Starks pressed his motion to suppress the firearm and ammunition,

arguing that the stop was unconstitutional. The district court

rejected this motion after a hearing at which Starks did not

testify.

At trial, Starks did not contest that the Wal-Mart bag

in his car contained a firearm and ammunition. Instead, his

defense was that he came into possession of the Wal-Mart bag

without knowing its contents.4 The key points of his account are

these: Starks's son, Dante, had been arrested on May 23 after his

girlfriend reported to the police that he had assaulted her. On

the evening of May 24, Dante called and asked Starks to go to his

apartment to pick up clothing and documents for court. Starks

drove to the apartment and encountered Dante's girlfriend. She

agreed to retrieve the clothing and documents while Starks waited

in the car outside. She walked out to the car with the Wal-Mart

bag, which she placed in the front passenger's seat. Starks drove

away without looking in the bag. To support this account, defense

4 Starks also did not contest that the other elements of 18
U.S.C. § 922(g) were satisfied. He stipulated that he had been
convicted of a felony punishable by over one year in prison. He
did not contradict the government's evidence that the gun and
ammunition had passed in interstate commerce.

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counsel asserted that it made no sense for Starks to place a bag

containing a gun and ammunition in the front passenger's seat of

the car and to leave it there even after Vital pulled him over.

The government challenged Starks's account in two

primary ways. First, the government pointed out that the Wal-Mart

bag contained four bottles of prescription pills, all of which

were prescribed to Starks. Starks specifically sought the return

of these pills--along with the clothing and documents--after he

was booked and released on bail. Second, the government questioned

whether it was plausible that Starks would trust Dante's girlfriend

to retrieve Dante's clothing and documents after she had reported

Dante to the police. The government suggested that it was far

more plausible that Starks had gone into Dante's apartment himself

to retrieve the pills, the clothing, and the documents--and that

he had taken the gun and ammunition too, so that Dante's estranged

girlfriend wouldn't turn them over to the police.

During closing arguments, defense counsel sought to cast

doubt on aspects of Vital's testimony. Counsel argued that during

the first interaction, "[Starks] wasn't nervous. Trooper Vital

would have you believe that he was nervous. . . . He was not

somebody who was fearful of the police." Counsel relied on

Starks's testimony that he had once worked as a truck driver to

argue that he was not drifting from lane to lane without signaling:

"[Starks] drives for a living. He knows at that point that there's

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a trooper that's following behind him. . . . Somebody who has a

[commercial driver's] license and who relies on their license,

doesn't drive in that way and they know how to drive." On rebuttal,

the government argued, for the first time, that Starks's

nervousness while interacting with Vital was evidence he knew about

the gun and ammunition on the seat next to him.

During the final jury charge, the district court gave

the instruction that Starks now challenges on appeal. The court

instructed the jury:

Legality of the traffic stop. You have
heard testimony by Trooper Vital and Mr.
Starks about the circumstances surrounding
Trooper Vital's stop of the rental car Mr.
Starks was driving and the reasons for that
stop.
To the extent their descriptions of those
circumstances differed, you may consider such
testimony like any other testimony. You are
not called upon, however, to determine the
legality of the stop. Before the trial, I
ruled that the stop was lawful. That was a
legal determination and you may not question
my ruling. However, the evaluation of the
credibility of Trooper Vital, Mr. Starks, and
the other witnesses is solely and entirely for
you to determine, including all facts and
circumstances about which you heard testimony.

The district court had previously instructed the jury that the

judge's "opinion about the evidence in this case, if [he] ha[s]

one, is totally irrelevant"; that the jury "should not interpret

anything [the judge] ha[s] said or done during the trial as

indicating what [he] think[s] about a witness or a piece of

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evidence or what [he] believe[s] the verdict should be"; and that

the jurors were "the sole judges of the credibility of the

witnesses."

B.

The instruction on the legality of the stop, argues

Starks on appeal, implicitly told the jury that a suppression

hearing had occurred before trial, that Starks and Vital had given

conflicting testimony at that hearing, and that the judge had found

Vital to be more credible. That implicit comment on the respective

credibility of the two central witnesses, he claims, tilted the

jury's assessment of which witness spoke credibly at trial on the

subject of whether Starks was nervous during the stop. This

nervousness, the jury may have reasoned, evidenced his knowledge

of the gun and ammunition in the Wal-Mart bag.

The government counters, first, that Starks failed to

raise this objection when the instruction was given. We disagree.

In response to the proposed instruction about the legality of the

stop, Defense counsel argued specifically that "it's really an

issue of credibility for the jury" to evaluate the contrasting

testimonies of Starks and Vital and "[f]or the[] [jury] to be told

that the stop is lawful . . . would then be taking that question

of fact away from them." The trial judge understood Starks to be

raising this issue, acknowledging "the possibility" that the jury

might understand the instruction as "a removal of certain

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credibility determinations from them." The judge proposed adding

the last sentence of the instruction to resolve Starks's objection,

but defense counsel was not satisfied and renewed the objection

after the charge. It does not matter that defense counsel never

used the words "due process" when stating the objection. Such an

omission, if one calls it that, is much like not specifically

mentioning the Fourth Amendment when challenging the

reasonableness of a search. In either situation, a trial court

understands the point being made. So, we turn to the merits of

the preserved objection.

On the merits, we agree with the government that the

challenged instruction simply cannot carry the meaning Starks

assigns to it. The instruction itself provided no hint that the

court's legal determination turned on an assessment of credibility

or was the result of a hearing at which Starks and Vital testified.5

To the contrary, both in its preface and in its conclusion, the

instruction distinguished the legal ruling from questions of

credibility. Importantly, too, the evidence that the jurors did

hear concerning the stop itself pointed to an obvious and

highlighted reason for the court's ruling that did not touch on

credibility. Specifically, Vital testified that the car's color

5
In fact, the court's legal determination did not turn on an
assessment of relative credibility, as Starks did not testify at
the suppression hearing.

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did not match the color listed on the car's registration and that

such a discrepancy itself justified the stop.6 Starks did not

dispute or challenge either aspect of this testimony.

In sum, we have on the one hand something of a stretch:

An argument that lay jurors would read judicial credibility

endorsements into an unadorned statement by the trial judge that

he found the stop lawful. On the other hand, we have an explicit

instruction that it was up to the jury to assess the witnesses'

credibility, and an explanation for the lawfulness of the stop

that had nothing to do with the witnesses' credibility. All in

all, we can find no direct or indirect comment on the credibility

of the witnesses. And while the instruction did communicate to

the jury an additional fact not otherwise in evidence--that the

court had made a legal determination about the stop prior to

trial--Starks's only argument that the trial judge erred by

communicating this fact is that it implied a comment on the

witnesses' credibility.7 Having rejected the notion that such an

implication was conveyed in these circumstances, we find no error.8

6We express no opinion as to whether Vital's testimony on
this point correctly stated the law.
7
Starks did not adequately brief, and therefore waived, other
potential bases for challenging the instruction. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
8A trial court may not always reliably predict how an
instruction of this type might be interpreted in context. In the
event a trial court concludes that such an instruction is
warranted, it might well be better practice simply to give the

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 II.

A.

We turn next to whether the district court properly found

that Starks had at least "three previous convictions by any

court . . . for a violent felony" under the ACCA, thereby

triggering a mandatory minimum sentence of fifteen years'

imprisonment for violating 18 U.S.C. § 922(g). See 18 U.S.C.

§ 924(e)(1). The ACCA defines a "violent felony," in relevant

part, as

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

Id. § 924(e)(2)(B). We refer to clause (i) as the "force clause"

and understand "physical force" to mean "violent force--that is,

force capable of causing physical pain or injury to another

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

(2010). Clause (ii) is not at issue here because armed robbery is

not one of the enumerated offenses in the "enumerated offense

clause" and the "residual clause"--the clause deeming a violent

jury an instruction along these lines: "Any challenges to the
lawfulness of a stop are for me to resolve. You need not be
concerned about them."

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felony any crime that "otherwise involves conduct that presents a

serious potential risk of physical injury to another"--has been

declared unconstitutionally vague, see Johnson v. United States

(Johnson II), 135 S. Ct. 2551, 2557 (2015).

At sentencing, the parties contested whether Starks had

three prior convictions for "violent felon[ies]" within the

meaning of the ACCA. Starks's presentence investigation report

(PSR) indicated that he had at least three prior convictions for

armed robbery arising from separate occasions,9 one prior

conviction for armed robbery while masked, two prior convictions

for unarmed robbery, and one prior conviction for armed assault

with intent to rob, all under Massachusetts law. Most of the armed

and unarmed robbery convictions occurred in 1991. The exceptions

are a conviction for armed robbery while masked in 1996 and a

conviction for armed robbery in 1998. Starks did not dispute that

he had been convicted of the offenses listed in his PSR, but he

argued that those offenses were not violent felonies.

The district court understood our decision in United

States v. Luna, 649 F.3d 91 (1st Cir. 2011), to hold that

9
The PSR lists nine different counts of armed robbery, based
on events that occurred on seven different dates, in six different
paragraphs. We have not been asked to determine how many of these
convictions arose from separate occasions, so we do not decide
this question. Starks has not challenged on appeal that if
Massachusetts armed robbery is a violent felony, then he has at
least three prior convictions for violent felonies arising from
separate occasions.

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Massachusetts armed robbery is a violent felony under the force

clause, and it therefore applied the ACCA mandatory minimum.

Starks objected at the sentencing hearing, arguing that under

Massachusetts law, it is possible to satisfy the elements of armed

robbery without using violent force. On appeal, he raises the

same argument. He also argues that if armed robbery is not a

violent felony, then he does not have the requisite three

convictions for violent felonies, since unarmed robbery and armed

assault with intent to rob are not violent felonies either.

We review a preserved claim that a prior conviction does

not satisfy the ACCA definition of a violent felony de novo. See

United States v. Faust, 853 F.3d 39, 50 & n.9 (1st Cir. 2017).

Our analysis proceeds in two steps. First, we consider whether

Massachusetts unarmed robbery is a violent felony. After

concluding that it is not, we consider, second, whether armed

robbery is a violent felony. Contrary to what the name of the

offense implies, we conclude that the offense as actually defined

is not.10 Before getting to this analysis, however, we set out the

unfortunately reticulated procedure by which we must evaluate

whether crimes are violent felonies under the force clause.

10We do not address whether armed assault with intent to rob
is a violent felony, since Starks does not qualify for the ACCA
mandatory minimum sentence if neither armed nor unarmed robbery
are violent felonies.

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 B.

1.

A crime only qualifies as a violent felony under the

force clause if it "has as an element the use, attempted use, or

threatened use of physical force against the person of another."

18 U.S.C. § 924(e)(2)(B)(i) (emphasis added). The Supreme Court

has interpreted this language to mean that we must take the

"categorical approach" to determine whether a defendant's prior

conviction for a certain crime satisfies the force clause. See

Shepard v. United States, 544 U.S. 13, 19 (2005) (describing the

language of the ACCA as "imposing the categorical approach" by

"refer[ring] to predicate offenses in terms not of prior conduct

but of prior 'convictions' and the 'element[s]' of crimes" (quoting

Taylor v. United States, 495 U.S. 575, 600–01 (1990))); Taylor,

495 U.S. at 602; Faust, 853 F.3d at 62 (Barron, J., concurring).

On this approach, the question does not turn on whether the

defendant used, attempted to use, or threatened to use violent

force in committing the crime as a matter of historical fact, but

on whether the use, attempted use, or threatened use of violent

force is required to satisfy one of the crime's elements. See

United States v. Whindleton, 797 F.3d 105, 108 (1st Cir. 2015),

cert. dismissed, 137 S. Ct. 23 (2016), and cert. denied, 137 S.

Ct. 179 (2016); cf. Mathis v. United States, 136 S. Ct. 2243, 2248

(2016) (noting, in an enumerated offense clause case, that the

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ACCA is concerned with the elements of a crime, and "cares not a

whit" about the facts underlying a particular conviction); id. at

2251–52 (collecting cases saying similar things); Descamps v.

United States, 133 S. Ct. 2276, 2283 (2013). A court determining

whether a crime satisfies the force clause therefore does not focus

on the name of the offense, or on what we think someone convicted

of the offense likely did. See Taylor, 495 U.S. at 590–91, 600–

02. Rather, we consider only whether the least serious conduct

for which there is a "realistic probability" of a charge and

conviction necessarily involves the use of violent force. See

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013); United

States v. Fish, 758 F.3d 1, 6 (1st Cir. 2014). In short, even if

most armed robberies are in fact violent, if a conviction can be

obtained without proof of violent force, then the offense does not

qualify as a violent felony under the ACCA's force clause.

We rely on state law for the elements of the crime and

what conduct satisfies those elements. See Johnson I, 559 U.S. at

138. In determining whether the least serious conduct that

satisfies those elements involves the "use, attempted use, or

threatened use of physical force against the person of another,"

however, we interpret a federal statute and do not defer to state

law. See id.

The above analysis must be modified to address crimes

that can be committed in multiple different ways. "Some

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statutes . . . have a more complicated (sometimes called

'divisible') structure . . . . A single statute may list elements

in the alternative, and thereby define multiple crimes." Mathis,

136 S. Ct. at 2249. "To address that need, th[e Supreme] Court

approved the 'modified categorical approach' for use with statutes

having multiple alternative elements." Id. "Under that approach,

a sentencing court looks to a limited class of documents (for

example, the indictment, jury instructions, or plea agreement and

colloquy) to determine what crime, with what elements, a defendant

was convicted of." Id. (citing, inter alia, Shepard, 544 U.S. at

26); see also United States v. Castleman, 134 S. Ct. 1405, 1414

(2014) (applying modified categorical approach when analyzing

crime under the force clause of the definition of a misdemeanor

crime of domestic violence); Johnson I, 559 U.S. at 144–45 (noting

that modified categorical analysis would limit the "practical

effect" of the Court's interpretation of ACCA's force clause). We

call this limited class of documents "Shepard documents."

Not all crimes that can be committed in multiple

different ways are divisible into multiple crimes with different

elements. There is "a different kind of alternatively phrased

law: not one that lists multiple elements disjunctively, but

instead one that enumerates various factual means of committing a

single element." Mathis, 136 S. Ct. at 2249. In order to determine

whether a crime that may be committed in multiple different ways

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is divisible, we must be able to distinguish between crimes that

have alternative elements and crimes that have a single set of

elements that may be satisfied by different means.

The Supreme Court and this court have recognized several

ways of distinguishing elements from means. Most fundamentally,

elements must be found unanimously by a jury, while means need not

be. See id. at 2248. So, in Mathis, the Court concluded that an

Iowa burglary statute that criminalized the burglary of a number

of different locations was indivisible because the Iowa Supreme

Court had held that "a jury need not agree on which of the locations

was actually involved." Id. at 2250 (quoting State v. Duncan, 312

N.W.2d 519, 523 (Iowa 1981)). Following Mathis, we have identified

the elements of a crime by determining what facts the state supreme

court requires a jury to find unanimously. See United States v.

Tavares, 843 F.3d 1, 15 (1st Cir. 2016), reh'g denied, 849 F.3d

529 (1st Cir. 2017). The relevant state model jury instructions

provide guidance on that question. See Faust, 853 F.3d at 57–58.

The text of the criminal statute itself may also distinguish

elements from means. "If statutory alternatives carry different

punishments, then . . . they must be elements. . . . And a statute

may itself identify which things must be charged (and so are

elements) and which need not be (and so are means)." Mathis, 136

S. Ct. at 2256; see also Descamps, 133 S. Ct. at 2290 ("A prosecutor

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charging a violation of a divisible statute must generally select

the relevant element from its list of alternatives.").

Finally, "if state law fails to provide clear answers"

about what is an element and what is a means, "federal judges have

another place to look: the record of a prior conviction itself."

Mathis, 136 S. Ct. at 2256. By "the record of a prior conviction"

Mathis means, we assume, the Shepard documents. Mathis provides

an example:

Suppose, for example, that one count of an
indictment and correlative jury instructions
charge a defendant with burgling a 'building,
structure, or vehicle' . . . . That is as
clear an indication as any that each
alternative is only a possible means of
commission, not an element that the prosecutor
must prove to a jury beyond a reasonable
doubt. So too if those documents use a single
umbrella term like 'premises': Once again,
the record would then reveal what the
prosecutor has to (and does not have to)
demonstrate to prevail. Conversely, an
indictment and jury instructions could
indicate, by referencing one alternative term
to the exclusion of all others, that the
statute contains a list of elements, each one
of which goes toward a separate crime.

Id. at 2257 (citation omitted). If neither state law nor the

Shepard documents "speak plainly" about whether a crime is

divisible, a sentencing court must assume that it is not. See id.

The divisibility analysis must also recognize that state

laws can change over time. For instance, a state crime may be

divisible at one point but, due to an intervening piece of

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legislation or court decision, become indivisible or unclear. In

the ACCA context, this court has held that the relevant question

is whether the crime was divisible at the time of the defendant's

prior conviction. See Faust, 853 F.3d at 57 (citing McNeill v.

United States, 563 U.S. 816, 820 (2011)). This approach comports

with Mathis, as consulting the Shepard documents to ascertain

divisibility will yield an answer that is indexed to the time at

which the defendant was charged with and convicted of the crime.

2.

Applying the foregoing mode of analysis, we first

consider whether Massachusetts unarmed robbery is a violent

felony. We start with the text of the statute:

Whoever, not being armed with a dangerous
weapon, by force and violence, or by assault
and putting in fear, robs, steals, or takes
from the person of another, or from his
immediate control, money or other property
which may be the subject of larceny, shall be
punished by imprisonment in the state prison
for life or for any term of years.

Mass. Gen. Laws ch. 265, § 19(b). This statute contains several

lists of different ways to commit the crime. For the purposes of

this opinion, we focus on one set of alternatives: robbery "by

force and violence" and robbery "by assault and putting in fear."

Massachusetts courts describe these alternatives as involving

different types of force: "actual force" and "constructive force."

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See, e.g., Commonwealth v. Jones (Jones I), 283 N.E.2d 840, 843

(Mass. 1972).

The government does not argue that Massachusetts unarmed

robbery is divisible into different crimes based on the type of

force used. We accept this concession and do not decide the

issue.11 Given the government's concession, if either way of

committing unarmed robbery is not a violent felony, unarmed robbery

is categorically not a violent felony.

Starks's argument that unarmed robbery is not a violent

felony focuses on the actual-force form of the offense, and we

follow his lead.12 According to the Massachusetts Supreme Judicial

11 No precedent plainly calls into question the correctness
of the government's concession. The Massachusetts Appeals Court
has concluded that an indictment for unarmed robbery need not
charge what type of force the defendant used. See Commonwealth v.
Jones (Jones II), 426 N.E.2d 726, 727 (Mass. App. Ct. 1981) ("The
particular type of force, actual or constructive, by which the
robbery is committed is not an essential element of the crime, and
it need not be pleaded in the indictment."). This holding is
consistent with the language Massachusetts statutory law has long
deemed "sufficient" for a robbery indictment. See Mass. Gen. Laws
ch. 277, § 79 ("Robbery. (Under Chap. 265, Sec. 19.)--That A.B.
did assault C.D. with intent to rob him, and thereby did rob and
steal from the person of said C.D. (mention the property) of the
property of said C.D."); An Act to Provide for the Simplification
of Criminal Pleadings, 1899 Mass. Acts 411, 432 (listing form of
robbery indictment identical to that provided in modern statute).
This rule, extant at the time of all of Starks's robbery
convictions, may support a conclusion that unarmed robbery is not
divisible. See Mathis, 136 S. Ct. at 2256; Descamps, 133 S. Ct.
at 2290.
12 Starks may have focused his argument in this way because
there is a good argument that constructive-force unarmed robbery
has as an element the threatened use of physical force against the
person of another. To prove the constructive-force form of the

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Court (SJC), "[w]hether actual or constructive force is employed,

the degree of force is immaterial so long as it is sufficient to

obtain the victim's property 'against his will.'" Id. at 843

(quoting Mass. Gen. Laws ch. 277, § 39). Jones I illustrates how

little force is necessary for an unarmed robbery conviction. That

case considered whether a purse snatching, which the victim did

not resist, involved the use of actual force. The SJC held that

purse snatching

necessarily involves the exercise of some
actual force . . . . [W]here, as here, the
actual force used is sufficient to produce
awareness, although the action may be so swift
as to leave the victim momentarily in a dazed
condition, the requisite degree of force is
present to make the crime robbery.

Id. at 845. As the Massachusetts Appeals Court has put it, under

Jones I, "the bare act of snatching a purse from the hand of a

victim, in the absence of any prior awareness by the victim of the

offense, "there must be, in addition to the elements of simple
larceny, some objectively menacing conduct by the defendant,
undertaken with the intent to put the victim in fear for the
purpose of stealing his property, and resulting in reasonable fear
or apprehension on the part of the victim facilitating the theft."
Commonwealth v. Marcotte, 466 N.E.2d 127, 129 (Mass. App. Ct. 1984)
(in armed robbery case); see Commonwealth v. Davis, 873 N.E.2d
1200, 1202 (Mass. App. Ct. 2007) (same in unarmed robbery case);
see also Commonwealth v. Garrett, 41 N.E.3d 28, 37 (Mass. 2015)
(actual fear or apprehension required for constructive-force
unarmed robbery); Commonwealth v. Joyner, 4 N.E.3d 282, 293 (Mass.
2014) (for constructive-force armed robbery, "objectively menacing
conduct" and "intent to put the victim in fear" are required
(quoting Marcotte, 466 N.E.2d at 129)). Thus, name
notwithstanding, the actual-force form of unarmed robbery may be
the less serious form of the offense.

- 22 -
impending act, is sufficient to constitute the element of force

required for unarmed robbery" even where the defendant "touch[es]

neither [the victim's] hand nor . . . body." Commonwealth v.

Brown, 318 N.E.2d 486, 487 (Mass. App. Ct. 1974). Jones I remains

good law. See Commonwealth v. Zangari, 677 N.E.2d 702, 702–03

(Mass. App. Ct. 1997) (upholding a conviction for unarmed robbery

where, after the victim was dropped off outside her home and walked

up the steps, "[s]he felt someone snatch her purse from under her

arm," "[s]he was stunned," and, "[t]urning, she saw the back of a

man running down [the street]"); see also Commonwealth v. Moran,

442 N.E.2d 399, 403 (Mass. 1982); Commonwealth v. Ahart, 641 N.E.2d

127, 131 (Mass. App. Ct. 1994).

The government points to passages in Jones I that explain

the SJC's reasoning to argue that robbery satisfies the force

clause. For instance, the SJC noted that "[h]istorically . . .

the law has singled out the robber from other thieves because of

his readiness to inflict bodily injury upon his victims." Jones I,

283 N.E.2d at 844. The SJC also distinguished robbery from larceny

in a footnote by quoting a draft of the Model Penal Code: "The

ordinary citizen feels himself able to guard against surreptitious

larceny . . . to some extent, by his own wits or caution. But he

abhors . . . (the robber[] whose) hardihood . . . enables him to

carry out his purpose in the presence of his victim and over his

opposition." Id. at 844 n.6 (quoting Model Penal Code § 222.1,

- 23 -
cmts. (Am. Law Inst., Tentative Draft No. 11, 1960))). In the

government's view, these observations mean that the actual-force

form of Massachusetts robbery "has as an element the . . .

threatened use of physical force against the person of another."

18 U.S.C. § 924(e)(2)(B)(i).

We are not persuaded. The SJC offered these observations

to justify its decision to depart from the more common rule, under

which robbery requires some resistance by or injury to the victim,

and to require only sufficient force to make the victim aware of

the taking. See Jones I, 283 N.E.2d at 844–45, 844 n.5. Despite

these observations, to convict a defendant of robbery by actual

force, a jury need not find that the victim felt threatened, that

the defendant intended to use violent force if the victim resisted,

or that the use of violent force was otherwise impending. See

United States v. Delgado-Sánchez, 849 F.3d 1, 10 (1st Cir. 2017)

(noting ambiguity in meaning of "threatened use of physical

force"). The SJC's observations amount to the judicial equivalent

of the Maine legislature's decision to label the mere possession

of two grams of a mixture containing heroin "trafficking." See

United States v. Mulkern, 854 F.3d 87, 96 (1st Cir. 2017).

Whatever label state law may give an offense and whatever

justification a state may offer for defining an offense in a

particular way, the ACCA definition of a violent felony turns on

a crime's elements, not the beliefs that may have led to the

- 24 -
adoption of those elements. Cf. id. (quoting, inter alia, Taylor,

495 U.S. at 590–91).

Thus, under the actual holding of Jones I, as interpreted

and applied by the Massachusetts courts, the minimum conduct

criminalized by the unarmed robbery statute is snatching a purse

using just enough force to make the victim aware of the purse

snatching, but without touching the victim, without any awareness

by the victim of the impending act, and without any intention to

use force against the victim if the victim resists. It is a

question of federal law whether such conduct involves "force

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

Johnson I, 559 U.S. at 140. We conclude that it does not.

This result follows from our precedent. In Mulkern, we

held that one subsection of Maine's robbery statute was not a

violent felony because the Maine Law Court had concluded that "'any

physical force'--e.g., pulling a purse from a person's hand--[wa]s

'sufficient force to convict of robbery'" under that subsection.

Mulkern, 854 F.3d at 92–94 (quoting Raymond v. State, 467 A.2d

161, 164–65 (Me. 1983)). In reaching that conclusion, the Maine

Law Court had described the SJC's opinion in Jones I as

"persuasive." Raymond, 467 A.2d at 164. Although in Mulkern we

explicitly disclaimed expressing any opinion on Massachusetts law,

see 854 F.3d at 94, the logic of the opinion extends directly to

unarmed robbery as defined by Jones I. Likewise, in United States

- 25 -
v. Castro-Vazquez, 802 F.3d 28 (1st Cir. 2015), we stated in dicta

that if Puerto Rico law allowed a conviction for robbery based on

the "slightest use of force," it would not qualify as a violent

felony under the force clause. Id. at 37–38. And in United States

v. Martinez, 762 F.3d 127 (1st Cir. 2014), we held that

Massachusetts simple assault is not a crime of violence under the

force clause of the career-offender sentencing guideline because

an assault could be accomplished by an attempted or threatened

"mere touching." Id. at 137-38. As Massachusetts unarmed robbery

only requires force sufficient to make the victim aware of the

theft, it may involve no more force against the victim than a mere

touching. Under our precedent, therefore, Massachusetts unarmed

robbery does not satisfy the force clause of the ACCA.

3.

Turning to Massachusetts armed robbery, we start once

again with the language of the statute. The Massachusetts armed

robbery statute reads:

Whoever, being armed with a dangerous weapon,
assaults another and robs, steals or takes
from his person money or other property which
may be the subject of larceny shall be
punished by imprisonment in the state prison
for life or for any term of years . . . .

Mass. Gen. Laws ch. 265, § 17. The SJC has parsed these elements

as follows:

The elements of the crime of armed robbery are
that a defendant, while armed with a dangerous

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 weapon, assaulted another person, and took
money or property from the person with the
intent to steal it. A defendant need not have
used or displayed the dangerous weapon during
the robbery; it is sufficient that the
prosecutor prove that the robber possessed the
dangerous weapon during the robbery.

Commonwealth v. Anderson, 963 N.E.2d 704, 718 (Mass. 2012)

(citations omitted). Crucially, "the crime of armed robbery does

not require that the perpetrator utilize the weapon in the

perpetration of the robbery. . . . Similarly, the perpetrator

need not display the weapon or otherwise make the victim aware of

its presence." Commonwealth v. Rogers, 945 N.E.2d 295, 301 n.6

(Mass. 2011); see also King v. MacEachern, 665 F.3d 247, 253 & n.7

(1st Cir. 2011) (recognizing this point and collecting cases

establishing it); Commonwealth v. Nickologines, 76 N.E.2d 649, 651

(Mass. 1948) ("It is not necessary to show the use of a dangerous

weapon in proving the offence of robbery while armed. The gist of

the offence is being armed, not the use of the weapon.").13

13
Between Nickologines and Rogers, at least one SJC opinion
contained language that could be read to signal a departure from
this rule. See Commonwealth v. Appleby, 402 N.E.2d 1051, 1057
(Mass. 1980) ("The gist of the offense of armed robbery is robbery
'while armed,' and thus there is no need to prove the defendant
used a weapon other than to threaten."). Nevertheless, the
government has conceded that Rogers correctly states the
Massachusetts law of armed robbery as it applied to Starks. The
government makes no argument that the law differed in 1991, 1996,
or 1998, the years of Starks's convictions.

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 The government concedes that armed robbery is not

divisible. We accept this concession and do not decide the issue.14

Accordingly, armed robbery qualifies as a predicate offense under

the ACCA only if both ways of committing it are violent felonies.

We focus once again on the actual-force form of armed

robbery. Starks argues that this form of armed robbery is not a

violent felony because it requires no more force than the actual-

force form of unarmed robbery. The only difference between the

two crimes is that a defendant convicted of armed robbery must

14 This concession, too, stands unrejected by the case law.
Indeed, there is Massachusetts case law holding that a jury need
not be unanimous about whether armed robbery was committed by force
or by threat of force. In Commonwealth v. Santos, the SJC held:
There was no requirement that the jury agree
as to precisely which threat, or which
application of force, caused the victim to
part with her money, and it would thus be
pointless to require them to agree that it was
one or more of the threats as opposed to one
or more of the applications of force that
succeeded in convincing [the victim] not to
resist the taking. The jury need not be
unanimous as to that detail . . . .
797 N.E.2d 1191, 1196 (Mass. 2003), overruled in part on other
grounds by Anderson, 963 N.E.2d at 718–19; see also Commonwealth
v. Porro, 939 N.E.2d 1157, 1165 (Mass. 2010) (reaffirming Santos
in dicta and stating that "we do not require that a jury be
unanimous as to which theory of assault forms the basis for their
verdict"). All of Starks's convictions for armed robbery occurred
before the SJC issued the Santos decision. Adopting the historical
approach required by Faust, 853 F.3d at 57, we would have to
determine the state of the law before Santos. While the
Massachusetts Appeals Court's opinion in Jones II, 426 N.E.2d at
727, noted above, may apply to armed robbery and may inform such
an analysis, we need not and do not decide that here.

- 28 -
possess a weapon during the robbery, though the victim need not be

aware of it. So, a person who has a knife in his pocket as he

snatches a victim's purse is guilty of armed robbery in

Massachusetts, even if the knife is not used or displayed during

the robbery. Pointing to the minimal force requirement and the

lack of any requirement that the victim even be aware of the

weapon, the Ninth Circuit recently held that Massachusetts armed

robbery is not a violent felony under the force clause. See United

States v. Parnell, 818 F.3d 974, 979-82 (9th Cir. 2016); id. at

982 (Watford, J., concurring).

This argument can only succeed if Jones I applies to

armed robbery. We note that there is a difference in the wording

of the unarmed robbery and armed robbery statutes. Unarmed robbery

requires that the defendant "by force and violence, or by assault

and putting in fear, robs, steals, or takes from the person of

another," Mass. Gen. Laws ch. 265, § 19(b), while armed robbery

requires that the defendant "assaults another and robs, steals, or

takes" the person's property, id. § 17. Nevertheless, the

Massachusetts cases on robbery do not differentiate between the

assault element of armed robbery and the force element of unarmed

robbery. See, e.g., Commonwealth v. Santos, 797 N.E.2d 1191, 1196

(Mass. 2003) (describing the assault element of armed robbery as

requiring either a "threat" or an "application of force"),

overruled in part on other grounds by Anderson, 963 N.E.2d at 718–

- 29 -
19; Commonwealth v. Tarrant, 326 N.E.2d 710, 713 (Mass. 1975) ("The

offense of robbery while armed is but an aggravated form of common

law robbery and is to be distinguished in main by the manner of

punishment and not by the material elements composing the common

law crime of robbery."); Commonwealth v. Richards, 293 N.E.2d 854,

857 (Mass. 1973) (stating that both unarmed robbery and armed

robbery can be committed in two ways: "by force applied to the

person, with intent to steal, or by an assault putting the person

in fear, with the same intent"); Commonwealth v. Novicki, 87 N.E.2d

1, 3 (Mass. 1949) (similar). Indeed, in a recent case describing

the force requirement of armed robbery, the SJC quoted the

statement in Jones I that "the degree of force is immaterial so

long as it is sufficient to obtain the victim's property against

his will." See Commonwealth v. Joyner, 4 N.E.3d 282, 293 (Mass.

2014) (quoting Jones I, 283 N.E.2d at 843).

Thus, we conclude that there is no reason, in principle,

that a purse-snatcher with a knife in his or her pocket could not

be convicted of armed robbery. Notably, the government does not

argue otherwise. Nor does the government argue that there is no

reasonable probability that such a person would be charged with

armed robbery. Instead, the government recognizes that "because

the dangerous weapon required to commit an armed robbery need not

be used or shown during the offense, the analysis of the two crimes

(armed and unarmed robbery) [is] substantially similar for

- 30 -
purposes of the force clause under the ACCA." (citation omitted).

The government makes two primary arguments that armed robbery

nevertheless satisfies the force clause.

First, the government argues that both unarmed robbery

and armed robbery satisfy the force clause because the SJC's

observations about the threat implicit in robbery entail that all

forms of robbery satisfy the force clause. We have rejected this

argument as to unarmed robbery above and we reject it as to armed

robbery too. It is true that when a robber has a dangerous weapon,

the risk of violence is greater and the SJC's observations about

the threat implicit in robbery are even more apt. But the SJC did

not make the threatened use of force a required element of armed

robbery. Thus, even on the SJC's assumption that armed robbery

generally involves an implicit threat of force, such a threat is

not present in the least serious conduct for which there is a

realistic possibility of a charge and conviction for Massachusetts

armed robbery. Moreover, to deem an offense qualifying under the

ACCA because the offense involves a risk of serious injury is to

rely on the ACCA's residual clause, which was designed to capture

crimes that "involve[] conduct that presents a serious potential

risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).

That clause, though, no longer applies. See Johnson II, 135 S.

Ct. at 2557. Nor is the fact that the residual clause has been

invalidated a reason to read a risk evaluation into the analysis

- 31 -
of the force clause--indeed, it is a reason not to do so. Such a

reading could potentially render the force clause itself

susceptible to a vagueness challenge.

Second, the government argues that we are bound to agree

that armed robbery is a violent felony by our opinion in Luna. In

Luna, this court did hold that Massachusetts armed robbery was a

violent felony under the force clause. 649 F.3d at 107-09.

Intervening decisions by the Supreme Court have not cast doubt on

this decision. The Luna opinion issued after the Johnson I

decision, addressed whether the crime of armed robbery in

Massachusetts involves violent force, and it concluded that it

does. Id. Luna did not rely on the residual clause, so Johnson II

did not undermine it. Nothing in Luna suggests that the panel

applied the modified categorical approach to an indivisible

statute, the error identified in Descamps, 133 S. Ct. at 2283, and

Mathis, 136 S. Ct. at 2250–51. Indeed, the Luna panel explicitly

stated that both forms of armed robbery satisfied the force clause.

See 649 F.3d at 108 n.18.

Nevertheless, Luna did not address the precise issue

before this panel. The defendant in that case did not make, and

therefore waived, the argument that Starks now presses. Instead,

the defendant in Luna argued that the elements of armed robbery

could be satisfied "if a defendant, while armed, puts his victim

in fear using threatening words or gestures," and that therefore

- 32 -
"the crime does not require violent force." Id. at 108. This

court, understandably, rejected that argument on the ground that

an armed robbery involving only threatening words or gestures

satisfies the force clause because it has as an element the

threatened use of physical force. Id. Luna therefore only

meaningfully considered a single argument relating to the

constructive-force form of armed robbery.

We recognize that the Luna opinion's conclusion is

phrased in broad terms. A footnote states that both forms of armed

robbery "are proper ACCA predicates, as discussed below," id. at

108 n.18, though the opinion contains no further discussion of the

actual-force form of armed robbery. The discussion of the force

clause ends with: "Luna has also provided no reason for us to

conclude that the type of force involved in armed robbery is not

'violent force--that is, force capable of causing physical pain or

injury,' and we see no reason to do so." Id. at 108-09 (emphasis

added) (quoting Johnson I, 559 U.S. at 140). The underlined clause

may be read to imply that the court independently considered other

arguments that armed robbery does not satisfy the force clause,

which Luna had failed to raise.15

15We note, however, that Luna does not cite the SJC's opinion
in Jones I. Nor does it recognize that to satisfy the force
element of robbery in Massachusetts, "the degree of force is
immaterial so long as it is sufficient to obtain the victim's
property 'against his will.'" Jones I, 283 N.E.2d at 843 (quoting
Mass. Gen. Laws ch. 277, § 39).

- 33 -
 We conclude that this expansive language from Luna is

dicta. It was presented without analysis and, because it addressed

a broader argument about whether armed robbery qualifies as a

violent felony that the defendant had waived, it was not necessary

to the court's conclusion. We are not bound to follow it. See

Arcam Pharm. Corp. v. Faría, 513 F.3d 1, 3 (1st Cir. 2007) ("We

have held that 'when a statement in a judicial decision is

essential to the result reached in the case, it becomes part of

the court's holding.' The result, along with those portions of

the opinion necessary to the result, are binding, whereas dicta is

not." (quoting Rossiter v. Potter, 357 F.3d 26, 31 (1st Cir.

2004))); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972

F.2d 453, 459 (1st Cir. 1992) (similar); McCoy v. Mass. Inst. of

Tech., 950 F.2d 13, 19 (1st Cir. 1991) (similar).16

Our decision in United States v. Whindleton also does

not require us to conclude that armed robbery satisfies the force

clause. We cannot draw the same distinction between Massachusetts

unarmed robbery and armed robbery that we drew between

16
Following the procedure described in cases such as United
States v. Holloway, 630 F.3d 252, 255 n.2 (1st Cir. 2011) and
United States v. Gendron, 18 F.3d 955, 967 (1st Cir. 1994), the
panel opinion in this case was circulated to all active judges of
the court, none of whom objected to our treatment of Luna. "We
caution that the use of this informal procedure does not convert
this opinion into an opinion en banc, nor does it preclude a
suggestion of rehearing en banc on any issue in the case . . . ."
Holloway, 630 F.3d at 255 n.2.

- 34 -
Massachusetts assault and assault with a dangerous weapon (ADW)

when we concluded in Whindleton that ADW necessarily involves

violent force even though assault does not. See 797 F.3d at 111-

16; see also United States v. Hudson, 823 F.3d 11, 17 (1st Cir.

2016) (holding that under the ACCA, Massachusetts ADW necessarily

involves the use of violent force). In Whindleton, "[i]t [wa]s

critical that the statute at issue . . . [wa]s Assault with a

Dangerous Weapon" because,

[l]ogically, the harm threatened by an 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. As a
result, the element of a dangerous weapon
imports the 'violent force' required by
[Johnson I] into the otherwise overbroad
simple assault statute.

Whindleton, 797 F.3d at 113–14. Similar reasoning does not apply

here because armed robbery, unlike ADW, does not require the use

of the dangerous weapon. Thus, we cannot find, as we did in

Whindleton, that armed robbery requires any sort of "touching . . .

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. at 114. In the absence of this factor, we see no basis for

concluding that armed robbery requires a greater degree of force

than unarmed robbery.

- 35 -
 4.

Once again, the immensely complicated analysis required

by the categorical approach for measuring state crimes against the

standards set forth in the ACCA (or similar statutes) leads to a

conclusion that a conviction for a violent sounding, serious crime

is nevertheless not a violent felony (or a crime of violence or

the like). One might reasonably guess that, in fact, Starks likely

engaged in conduct that involved the use or threatened use of

violent force against a person. Establishing a minimum term of

incarceration based on the fact someone engaged in certain conduct,

however, generally requires a jury finding. See Alleyne v. United

States, 133 S. Ct. 2151, 2155 (2013). With the ACCA, Congress

sought to avoid the need for such findings by mandating a longer

sentence based not on conduct, but on bare convictions. While

this works in principle, id. at 2160 n.1 (citing Almendarez–Torres

v. United States, 523 U.S. 224 (1998)), its use requires that we

deem the convictions to have been for the least serious conduct

for which there is a realistic possibility of a charge and

conviction. Thus, if a crime involves a taking of $1 to $1000, we

must assume that a conviction was for taking $1. Similarly, in

this case, we assume that Starks's many convictions were based on

the least amount of force required by the pertinent laws and hold

that that small level of force (i.e., touching) is not the violent

force that the ACCA requires. We therefore reverse the district

- 36 -
court's ruling that the ACCA's 180-month mandatory minimum

sentence applied.

III.

For the foregoing reasons, we affirm Starks's conviction

but vacate his sentence and remand for resentencing.

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