United States v. Kennedy

United States Court of Appeals
For the First Circuit

No. 15-2298

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH J. KENNEDY,

Defendant, Appellant.

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

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

Before

Torruella, Kayatta, and Barron,
Circuit Judges.

Oscar Cruz, Jr., Assistant Federal Public Defender, and Amy
Barsky, Research and Writing Specialist, Federal Public Defender
Office, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

January 24, 2018
 KAYATTA, Circuit Judge. Joseph Kennedy appeals his

conviction and sentence for being a felon in possession of

ammunition in violation of 18 U.S.C. § 922(g)(1). Challenging his

conviction, Kennedy argues that the district court erred in denying

his motion to suppress evidence obtained from a warrantless search

of the vehicle he was driving immediately before his arrest.

Challenging his sentence, he argues that the district court erred

in finding that he qualified for a mandatory minimum sentence under

the Armed Career Criminal Act ("ACCA"). We affirm Kennedy's

conviction, but vacate his sentence and remand for resentencing.

I. Background

We draw from the district court's findings of fact for

the circumstances leading to Kennedy's arrest and indictment. In

the spring of 2014, Kennedy was on federal supervised release when

a warrant issued for his arrest based on allegations that he had

violated the terms of his supervision. While several officers

from the Boston Police Department and the United States Marshals

Service were conducting surveillance in Charlestown, Massachusetts

at the address of Kennedy's longtime girlfriend, the Quincy Police

Department transmitted a "Be On the Lookout" bulletin. The

bulletin explained that Kennedy was wanted for a larceny that had

occurred in Quincy, Massachusetts the night before. The

surveillance team learned, from a United States Marshal who

communicated the information in the bulletin, that the larceny had

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involved the theft of a safe containing ammunition and possibly

weapons, pepper spray, and drugs. The officers were also told

that Kennedy might be driving a gray Honda Fit and were provided

with the license plate number of that vehicle.

Later that afternoon, a gray Honda Fit matching the

bulletin's description approached the surveillance location. One

officer recognized Kennedy as the driver of the car from a

photograph he had been shown previously. Kennedy parked the car

legally near his girlfriend's apartment and exited the vehicle.

When the officers approached Kennedy to arrest him, he ran away

but was quickly apprehended. He was handcuffed and removed from

the scene. Once Kennedy was secured and away from the car, one of

the officers approached the Honda Fit. Through the window of the

vehicle, the officer could see clutter on the backseat, including

duffel bags, garbage bags, backpacks, and clothing. He also saw

a large, box-shaped object on the backseat mostly covered by a

duffle bag. A small visible portion of the box appeared to be

gray and metallic. Believing the object to be the stolen safe,

the officers decided to tow the vehicle. Before doing so, they

opened the car and searched it. Inside, they uncovered a forced-

open safe containing drug paraphernalia and the ammunition that

served as the basis for Kennedy's charge in this case.

After Kennedy was indicted, he moved to suppress all

evidence stemming from the warrantless search of the Honda Fit, on

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the grounds that the search violated the Fourth Amendment. After

a one-day evidentiary hearing, at which two officers testified,

the court denied the motion, finding that the automobile exception

applied and, in the alternative, that the officers had probable

cause to believe the car itself had been used during the theft and

therefore was the proper subject of an inventory search. Kennedy

subsequently entered a conditional guilty plea, reserving the

right to appeal the court's denial of his motion to suppress.

At sentencing, the primary issue was whether Kennedy

qualified for a sentencing enhancement under the ACCA based on

state crimes to which he had previously pled guilty. The parties

presented arguments regarding six potential predicates: two

convictions for Massachusetts assault with a dangerous weapon

("ADW"), three convictions for Massachusetts assault and battery

with a dangerous weapon ("ABDW"), and one for Massachusetts

aggravated assault and battery ("AA&B"). The court found that it

was bound by First Circuit law to count the two ADW offenses as

violent felonies and therefore as qualifying ACCA convictions.

As to the remaining offenses, the district court began

by looking at the plea colloquy between Kennedy and the state

court. The transcript of the colloquy showed that Kennedy had

been charged with both AA&B and ABDW resulting from the same

incident. In that incident, as described by the prosecutor,

Kennedy and another attacker approached the victim, one of the two

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attackers punched him, the victim fell backward and hit his head

on a pole, and both Kennedy and the other attacker continued to

punch and kick the victim once he was on the ground. Kennedy was

charged with one count of AA&B and three counts of ABDW, one for

assault and battery with a pole and two for assault and battery

with a "shod foot," due to repeated kicks to the victim.

After the prosecutor recited these facts at the plea

hearing, the state court asked Kennedy various questions about his

plea. Several of Kennedy's responses to important questions such

as "Did you commit those acts?" were deemed "Unintelligible" by

the reporter who completed the transcript, which was not requested

until long after the proceeding. At sentencing in the district

court, the government presented a common-sense argument regarding

how the court should interpret the incomplete transcript of the

plea colloquy: If any of Kennedy's responses had been "No," or if

Kennedy had vacillated at all, the state court would have stopped

and asked follow-up questions, rather than immediately continuing

with the colloquy. The government also explained that it had

listened to the audio of the state court proceeding and, although

it could not make out Kennedy's responses, it could tell that they

were very brief, consistent with one-word answers. Finally, the

government emphasized that after asking Kennedy numerous

questions, the state court asked, "Have you been confused with any

of my questions?" to which Kennedy audibly responded "I have not."

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On this basis, the government urged the district court to infer

that Kennedy had answered "Yes" to the key questions by the state

court (and "No" where appropriate).

Accepting the government's interpretation of the plea

colloquy transcript, the district court found that Kennedy had

pled guilty to three additional offenses (AA&B, ABDW with a pole,

and ABDW with a shod foot) that constituted violent felonies, any

one of which, when added to the two ADW offenses, was sufficient

to satisfy the ACCA. The court therefore applied the ACCA

enhancement and sentenced Kennedy to 180 months' imprisonment, the

minimum sentence under the statute. This timely appeal followed.

II. Discussion

We discuss in turn Kennedy's two objections to the

proceedings below, beginning with the suppression challenge.

A.

In reviewing the denial of a motion to suppress, we

review factual findings for clear error and conclusions of law,

including ultimate constitutional determinations such as the

existence of probable cause, de novo. See Ornelas v. United

States, 517 U.S. 690, 699 (1996); see also United States v.

Camacho, 661 F.3d 718, 724, 726–27 (1st Cir. 2011) (reviewing the

district court's determination of reasonable suspicion de novo).

Under the automobile exception to the Fourth Amendment's

warrant requirement, see California v. Acevedo, 500 U.S. 565, 579

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(1991), the question before us is whether the totality of the

circumstances created a "fair probability that . . . evidence of

a crime" would be found in the Honda Fit. United States v. Dion,

859 F.3d 114, 132 (1st Cir. 2017) (alteration in original) (quoting

United States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014)). When the

officers searched the vehicle, they knew the following

information: Kennedy was wanted for the theft of a safe containing

ammunition and possibly other items that had occurred the previous

night; there was clutter in the backseat of the vehicle he had

been driving immediately before his arrest, including bags and

clothing piled on top of what appeared to be a large, box-shaped

item consistent with the size and shape of a safe; and the small

portion of the box-shaped item that was exposed appeared gray in

color and metallic. These were all facts found by the district

court based on the testimony of two of the police officers involved

in Kennedy's arrest, and these findings were not clearly erroneous.

See Camacho, 661 F.3d at 723 ("A clear error exists only if, after

considering all the evidence, we are left with a definite and firm

conviction that a mistake has been made." (internal quotation marks

omitted)); United States v. Barnes, 506 F.3d 58, 62 (1st Cir. 2007)

("Clear error does not exist if any reasonable view of the evidence

supports the decision." (internal quotation marks omitted)). This

factual basis -- together with reasonable inferences drawn

therefrom -- was sufficient to establish a "fair probability" that

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evidence of the larceny would be found inside the vehicle. Dion,

859 F.3d at 132.

Kennedy does not dispute these facts but nevertheless

argues that the district court erred in denying his motion to

suppress for two reasons: The officers did not have specific

information linking the Honda Fit to the larceny and the passage

of ten to twelve hours between when the larceny was reported and

when Kennedy was arrested renders any link between the crime and

the car weak.

Assuming Kennedy's first contention is true, it is

irrelevant. The officers' search was proper so long as there was

probable cause to believe the Honda Fit contained evidence of the

larceny. That the Honda Fit was directly used in the commission

of the larceny -- as opposed to, for example, after the larceny to

transport the stolen items -- is not a necessary condition for

that conclusion. And Kennedy's assertion that there was "no

evidence of the theft in plain view in the Honda" is simply untrue.

Although the district court correctly found that the full safe was

not in plain view, what was in plain view as established by the

officers' testimony was more than enough to support a reasonable

belief that the object was a safe.

As for Kennedy's second argument, the passage of ten to

twelve hours after the report of the Quincy larceny does not render

the search unconstitutional. While there may be circumstances in

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which the passage of half a day turns a tip into stale information

that is insufficient for probable cause, cf. United States v.

Zayas-Diaz, 95 F.3d 105, 114–15 (1st Cir. 1996), this is not one

of those cases. Simply put, what the officers saw in the car

served as verification of the information in the bulletin and

ameliorated any concern that the information was stale. Given the

totality of the circumstances in this case, there was probable

cause to search the Honda Fit.

Because we conclude that the automobile exception

applies and therefore that the search of the Honda Fit was

reasonable, we can affirm Kennedy's conviction without any need to

determine whether the district court's alternative basis for

denying his motion to suppress was proper.

B.

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

Pursuant to the ACCA, an individual convicted of being a felon in

possession of a firearm or ammunition under 18 U.S.C. § 922(g)(1)

is subject to a mandatory minimum sentence of fifteen years if he

also has three prior convictions for violent felonies. 18 U.S.C.

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

as any crime punishable by imprisonment over one year that "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).

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 It is undisputed that Kennedy has two prior convictions

for Massachusetts ADW, an offense that qualifies as a violent

felony under United States v. Whindleton, 797 F.3d 105, 116 (1st

Cir. 2015). The question before us is whether Kennedy has a third

predicate offense for ACCA purposes. There are two possible

contenders for Kennedy's third qualifying offense: Massachusetts

AA&B or Massachusetts ABDW, to both of which Kennedy pled guilty

in February 2010. In its supplemental brief, the government

informed us that it "no longer seeks to rely" on the AA&B

conviction as a basis to affirm Kennedy's ACCA sentence. Thus, we

address only whether Kennedy's ABDW conviction qualifies as a

violent felony.1 This "is a legal question we review de novo."

Id. at 108.

Massachusetts ABDW comes in two forms: intentional and

reckless. See United States v. Tavares, 843 F.3d 1, 12 (1st Cir.

2016). This court has described the two forms of ABDW as:

(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.

1 At the government's behest, we focus even more narrowly on
Kennedy's two convictions for assault and battery with a shod foot,
rather than on the conviction arising out of the victim falling
against a pole.

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Id. at 14 (alteration in original). We have held that the first,

intentional form of Massachusetts ABDW is a crime of violence under

the force clause of section 4B1.2(a)(1) of the United States

Sentencing Guidelines. Tavares, 843 F.3d at 13. That holding

fits equally well with the ACCA's force clause. See United States

v. Edwards, 857 F.3d 420, 427 n.12 (1st Cir. 2017). More recently,

we held that reckless ABDW is not a violent felony under the force

clause of the ACCA. United States v. Windley, 864 F.3d 36, 39

(1st Cir. 2017) (per curiam) (adopting the analysis in Bennett v.

United States, 868 F.3d 1 (1st Cir.), withdrawn as moot by 870

F.3d 34 (1st Cir. 2017)). Thus, ABDW is not categorically a

violent felony, so we cannot affirm Kennedy's sentence on that

basis. See United States v. Faust, 853 F.3d 39, 51 (1st Cir.),

reh'g denied, 869 F.3d 11 (1st Cir. 2017) (explaining that under

the categorical approach, a court must first determine "whether

all of the conduct covered by the statute categorically requires

violent force"). Instead, to affirm Kennedy's sentence, we would

need to find both that Massachusetts ABDW is divisible into its

intentional and reckless forms, and that Kennedy pled guilty to

the intentional form. See Mathis v. United States, 131 S. Ct.

2243, 2249, 2256 (2016).

The question whether Massachusetts ABDW is divisible

into elementally distinct forms has no easy answer. In Tavares,

we attempted to predict how the Massachusetts Supreme Judicial

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Court would rule. 843 F.3d at 14-15. But, as we later explained,

we did so without the benefit of any argument to proceed otherwise.

See United States v. Tavares, 849 F.3d 529, 529–30 (1st Cir. 2017)

(denying petition for rehearing). We later pointed toward a more

"backward-looking," "historical" approach in attempting to gauge

the divisibility of another Massachusetts offense. Faust, 853

F.3d at 56-57 (quoting McNeill v. United States, 563 U.S. 816,

820, 822 (2011)). In this case now before us, we can avoid the

difficult question of divisibility because we find that, even if

ABDW is divisible into intentional and reckless forms, the record

of Kennedy's prior convictions do not allow us to find that he

pled guilty to intentional ABDW. Our reasoning follows.

When an offense is divisible (or, as here, assumed to be

divisible), we look to so-called Shepard documents to see if we

can determine that the defendant was previously convicted of the

ACCA-qualifying form of the offense (here, intentional ABDW).

Shepard v. United States, 544 U.S. 13, 26 (2005) (holding that, in

determining whether a defendant pled guilty to a qualifying

offense, a sentencing court may look to the charging document, the

plea agreement, the plea colloquy transcript, or to some

"comparable judicial record"). The relevant record in this case

consists of the following.

First, the criminal complaint lacks any express

allegation concerning Kennedy's mental state. It alleges

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conclusory facts (e.g., Kennedy "did, by means of a dangerous

weapon, a shod foot, assault and beat" the victim) that certainly

sound like an intentional act. But cf. United States v. Holloway,

630 F.3d 252, 262 (1st Cir. 2011) (vacating a sentence under the

ACCA's now-severed residual clause because boilerplate language

"did assault and beat" in an indictment was insufficient to

establish a violent felony). But it also alleges "serious bodily

injury," a fact only required to sustain the reckless version of

the offense.

Second, there is the clerk's description of the accepted

plea at the end of the colloquy. It, like the criminal complaint,

makes no mention of Kennedy's state of mind, describing the

judgment as simply a finding of guilty on charges of "assault and

battery with a dangerous weapon."

Third, there is the prosecutor's description at the plea

colloquy of the facts giving rise to the charges, together with

Kennedy's admission that he "commit[ted] those acts."2 Those

facts, like the statements in the complaint, plainly describe

conduct that one would perform intentionally. Specifically, the

prosecutor described the assault as follows:

2 Although the transcript reflects that many of Kennedy's
responses to questions by the state court were "Unintelligible,"
we, like the district court, assume that Kennedy answered "Yes" to
these questions (and "No" where appropriate), thereby pleading
guilty to the facts presented by the prosecutor.

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 [The victim] was jumped by two white males who
then fled the area. . . . [O]ne of the
individuals punched him. He fell to the
ground; fell back, hitting his head on a pole.
They continued to punch him and kick him when
he was on the ground.

The government argues that the facts alleged, admitted,

and "found by the district court show that Kennedy engaged in

intentional, not merely reckless, conduct." So the question is

posed, do we infer from admitted behavior that a defendant was

convicted of the ACCA-qualifying form of the offense whose elements

could be satisfied by the behavior? Or do we instead limit our

review of the plea colloquy to determine whether the defendant

actually pled guilty to that form of the offense? The Supreme

Court's case law arguably points in several directions on this

question. In Shepard, the Court stated that in pleaded cases, we

can look to "the statement of factual basis for the charge, Fed.

Rule Crim. Proc. 11(a)(3), shown by a transcript of plea

colloquy . . . or by a record of . . . findings of fact adopted by

the defendant upon entering the plea." 544 U.S. at 20; see also

id. at 25 (plurality opinion) (noting that "the defendant's own

admissions or accepted findings of fact confirming the factual

basis for a valid plea" can provide certainty of a generic

finding). Shepard, though, also suggests that what we look for in

such an examination is whether there is an admission of "the

generic fact," id. (plurality opinion), which is the fact that

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differentiates, for example, a burglary that is a violent felony

(burglarizing a building or structure) from the overly broad non-

generic burglary (which includes burglarizing a car). Here, the

generic fact would be that Kennedy acted intentionally, which he

never admits other than by implication.

More generally, the Court's subsequent direction

instructs that the relevant inquiry does not train on ascertaining

whether Kennedy admitted facts that could support a conviction for

intentional ABDW. See Mathis, 136 S. Ct. at 2254 (explaining that

the modified categorical approach "is not to be repurposed as a

technique for discovering whether a defendant's prior

conviction . . . rested on facts . . . that also could have

satisfied the elements of a generic offense"). Rather, we look at

the record documents to determine the elements of the offense for

which Kennedy was convicted. "How a given defendant actually

perpetrated the crime -- what we have referred to as the

'underlying brute facts or means' of commission -- makes no

difference[,] even if his conduct fits within the generic

offense . . . ." Id. at 2251 (internal citation omitted); see

also Descamps v. United States, 570 U.S. 254, 262–63 (2013)

(emphasizing that a court's responsibility is "not to determine

'what the defendant and state judge must have understood as the

factual basis of the prior plea,'" but rather "to assess whether

the plea was to the version of the crime . . . corresponding to

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the generic offense" (quoting Shepard, 544 U.S. at 25–26 (plurality

opinion))); id. (emphasizing the "narrow scope" of the review under

the modified categorical approach). In light of this guidance

from the Court, we have observed that the task of the sentencing

court "is not to fit the facts of the individual defendant's

conduct into one of the divisible offenses." Faust, 853 F.3d at

53.

We think it best to follow the Court's most recent and

direct pronouncements, as we did in Faust. We look to Kennedy's

plea colloquy not to see if the admitted facts could support a

conviction for the intentional form of ABDW, but instead to see if

he was charged with and pled guilty to that offense. A

hypothetical illustrates why we proceed in this manner.

Imagine that the Massachusetts statute set forth two

plainly separate (and thus completely divisible) offenses:

intentional ABDW and reckless ABDW. Now picture a criminal

complaint or indictment charging "reckless ABDW," a plea colloquy

admitting to facts such as we have here, and a judgment of

conviction for "reckless ABDW." Clearly, under Descamps, we would

decide the conviction to be for reckless ABDW notwithstanding the

facts admitted during the colloquy. Conversely, if the complaint

and judgment alleged intentional ABDW, then we would regard the

conviction as being for that offense.

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 Here, the government asks us to view Massachusetts ABDW

just as in the hypothetical: two divisible offenses with distinct

elements. And the facts Kennedy admitted to are just as in the

hypothetical. What is missing -- in the complaint, in the

colloquy, and in the judgment -- is any specificity as to which

offense was charged and admitted. It is as if the complaint and

judgment said "intentional or reckless ABDW." And if they so

stated, we certainly could not say -- much less with "Taylor's

demand for certainty," Mathis, 136 S. Ct. at 2257 (quoting Shepard,

544 U.S. at 21) -- that Kennedy was convicted of a qualifying

predicate offense under the ACCA. See Faust, 853 F.3d at 59

("Facts that are as consistent with intentional [assault and

battery on a police officer] as they are with reckless ABPO can

hardly be said to 'speak plainly.'"). Rather, we would have to

say that, even assuming ABDW is divisible, the conviction was not

plainly for one form rather than the other.

Although we have at times suggested that courts may draw

inferences from facts presented in a plea colloquy, see United

States v. Miller, 478 F.3d 48, 52 (1st Cir. 2007) (noting that "an

inquiring court has the right to draw reasonable inferences from

the evidence" and need not "wear blinders" or "leave common sense

out of the equation"), we have generally declined to do so for

questions of mens rea, see United States v. Martinez, 762 F.3d

127, 136 (1st Cir. 2014) (holding that the defendant's prior

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conviction was not a crime of violence under the sentencing

guidelines even though he admitted that he "struck" his girlfriend

because there was no showing that he confessed to the "added gloss"

of doing so intentionally, rather than recklessly); cf. id. n.5

(setting aside the "perhaps more difficult question of whether,

when the elements of two or more offenses" overlap, "a plea

colloquy in which a defendant admits to facts that might have given

rise to a conviction under more than one of them nevertheless

permits a sentencing court to conclude that the admissions were

legally necessary components of a plea to a more serious charge");

Patel v. Holder, 707 F.3d 77, 82 (1st Cir. 2013) (applying the

modified categorical approach in the immigration context and

finding that the prosecutor's description of the offense "can only

tell us so much about what was in [the defendant's] own mind during

the crime").

Another way to think about this question is to consider

the plea context as an analogue to trial. The Supreme Court has

made clear that the modified categorical approach applies in both

situations, and in the same manner. See Shepard, 544 U.S. at 19.

For tried cases, sentencing courts are instructed to look to

charging documents, jury instructions, and jury verdicts (or the

judge's formal rulings of law and findings of fact in a bench

trial) to determine the nature of the prior conviction. See id.;

Taylor v. United States, 495 U.S. 575, 602 (1990). Neither Taylor

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nor Shepard allows courts to look to trial testimony for the facts

presented or admitted to by the defendant. That was exactly what

the Supreme Court sought to avoid by imposing the categorical

approach in the first place. See Taylor, 495 U.S. at 601

(suggesting that where the charging paper does not reveal the

theory presented to the jury, it would be inappropriate to allow

the government to introduce the trial transcript before the

sentencing court); cf. Descamps, 570 U.S. at 274 (noting that "we

have expressly and repeatedly forbidden" courts from asking

whether a particular set of facts leading to a conviction conforms

to an ACCA offense). This analogy to tried cases should guide our

application of the modified categorical approach in plea cases

like Kennedy's. We can look to the plea colloquy, see Shepard,

544 U.S. at 20, but not for statements and admissions of the type

that might show up in testimony at trial. Rather, we are looking

for something that resembles what we would find in a charging

document or jury verdict in a tried case. Cf. Descamps, 570 U.S.

at 272 ("A prosecutor charging a violation of a divisible statute

must generally select the relevant element from its list of

alternatives.").

This mode of analysis admittedly leaves little role for

much of the plea colloquy in the modified categorical approach,

just as it leaves little room for trial testimony in tried cases.

The colloquy, though, remains relevant because it could very well

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reflect not just the facts of the defendant's conduct, but also

that he was charged with and pled to a particular version of the

offense. In other words, Kennedy's colloquy might have -- but did

not -- contain an explicit discussion of intentional or reckless

ABDW. A colloquy, unlike the one here, might also reflect facts

that simply could not support one form of the offense.

Our analysis presumes that defendants may admit to facts

that are not necessary to support a conviction on the charge

brought against them. We are in good company in so presuming.

See Mathis, 136 S. Ct. at 2253 ("[A] defendant may have no

incentive to contest what does not matter under the law . . . .");

Descamps, 570 U.S. at 270 (noting that defendants often have

"little incentive to contest facts" that are "irrelevant to the

proceedings"). Two tendencies make it especially likely that a

defendant will admit to additional facts above and beyond those

necessary for his conviction. First, where, as here, there is no

clear difference in the sentencing range for the various forms of

the offense, a defendant has no reason to clarify the nature of

his admission. See Mass. Gen. Laws ch. 265 § 15A(b) ("Whoever

commits an assault and battery upon another by means of a dangerous

weapon shall be punished by imprisonment in the state prison for

not more than 10 years or in the house of correction for not more

than 2 1/2 years, or by a fine of not more than $5,000, or by both

such fine and imprisonment."). Second, in the context of a plea

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bargain, defendants frequently plead guilty to lesser charges than

those originally brought against them; as a result, the facts

alleged and admitted to at the plea colloquy can often support the

greater charge. The First Circuit regularly affirms convictions

and sentences arising out of these situations. See, e.g., United

States v. Sánchez-Colberg, 856 F.3d 180 (1st Cir. 2017) (affirming

conviction and sentence where the defendant pled guilty to

possessing marijuana and certain firearms in exchange for the

government's dismissal of other charges and the facts alleged at

the plea colloquy supported those additional charges); United

States v. Díaz-Bermúdez, 778 F.3d 309 (1st Cir. 2015) (similar);

see also United States v. Díaz-Concepción, 860 F.3d 32 (1st Cir.

2017) (affirming conviction in similar situation); United States

v. Santiago Miranda, 654 F.3d 130 (1st Cir. 2011) (same). Relying

too heavily on the facts admitted in a plea colloquy could

therefore threaten to deprive many defendants of the benefit of

their bargains. See Taylor, 495 U.S. at 601–02 ("[I]f a guilty

plea to a lesser, nonburglary offense was the result of a plea

bargain, it would seem unfair to impose a sentence enhancement as

if the defendant had pleaded guilty to burglary.").

In sum, even assuming that intentional ABDW is a

separate, divisible form of Massachusetts ABDW, the record to which

we are allowed to look does not plainly show that Kennedy pled

guilty to that form of the offense. Mathis, 136 S. Ct. at 2257.

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Therefore, Kennedy's ABDW conviction cannot serve as his third

ACCA predicate and, since the government does not point to any

other crime that could qualify, Kennedy was improperly sentenced

as an armed career criminal. We therefore vacate the mandatory

minimum sentence imposed by the district court and remand for

resentencing without the ACCA enhancement.3

III. Conclusion

For the foregoing reasons, we affirm Kennedy's

conviction and vacate his sentence.

3 Kennedy has also preserved an argument that, even if his
ABDW convictions were for violent felonies under the ACCA, unless
proven or admitted in this subsequent case, they cannot be used to
increase the statutory minimum or maximum sentence that would
otherwise apply. Setting aside that we are bound by Almendarez-
Torres v. United States, 523 U.S. 224, 243–47 (1998), we need not
reach this question due to our conclusion that Kennedy's ACCA
sentence was improper on other grounds.

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