United States v. Weems

United States Court of Appeals
For the First Circuit

No. 17-1059
UNITED STATES OF AMERICA,

Appellant,

v.

KENDALL ROSE,
Defendant, Appellee.

No. 17-1064
UNITED STATES OF AMERICA,

Appellant,

v.

IKE WEEMS, a/k/a True,
Defendant, Appellee.

No. 17-1066
UNITED STATES OF AMERICA,

Appellant,

v.

ANTHONY SABETTA,
Defendant, Appellee.

No. 17-1067
UNITED STATES OF AMERICA,

Appellant,

v.
 ALBERTO RODRÍGUEZ,
Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge,
Hon. William E. Smith, U.S. District Judge]

Before

Torruella, Kayatta, and Barron,
Circuit Judges.

Donald C. Lockhart, Assistant United States Attorney, with
whom Stephen G. Dambruch, Acting United States Attorney, was on
brief, for appellant.
Judith H. Mizner, Assistant Federal Public Defender, Federal
Public Defender Office, was on brief, for appellees.

July 18, 2018
 TORRUELLA, Circuit Judge. Kendall Rose, Ike Weems,

Anthony Sabetta, and Alberto Rodríguez (collectively, the

"Defendants") brought motions under 28 U.S.C. § 2255 to vacate,

set aside, or correct their sentences. They argued that, in the

wake of Johnson v. United States (Johnson II), 135 S. Ct. 2551

(2015), their convictions for the Rhode Island offense of Assault

with a Dangerous Weapon (A/BDW), see R.I. Gen. Laws § 11-5-2(a),

no longer qualify as predicate convictions triggering the Armed

Career Criminals Act's (ACCA) mandatory 15-year sentence, see 18

U.S.C. § 924(e). The district court agreed with them, and granted

those motions. The government appealed. We affirm.

I.

We begin with an overview of this case's factual and

procedural background, which also gives us the opportunity to

review the law that is in play here.

A.

The facts relevant to this appeal are straightforward

and uncontested. All of the Defendants were convicted of

violating 18 U.S.C. § 922(g), which forbids from possessing

firearms individuals who have been convicted of crimes that are

punishable with over one year of imprisonment. "In general, the

law punishes violation of this ban by up to 10 years'

imprisonment." Johnson II, 135 S. Ct. at 2555 (citing 18 U.S.C.

-3-
§ 924(a)(2)). "But if the violator has three or more earlier

convictions for a 'serious drug offense' or a 'violent felony,'

[ACCA] increases his prison term to a minimum of 15 years and a

maximum of life." Id. (citing 18 U.S.C. § 924(e)). This was the

case for the Defendants, who all received mandatory sentences of

at least 15 years that relied at least in part on their predicate

convictions under R.I. Gen. Laws § 11-5-2(a).

After the Defendants received their ACCA-enhanced

sentences, the Supreme Court decided Johnson II. That case

pertained to ACCA's definition of "violent felony" for purposes of

determining whether a defendant's prior convictions trigger the

statute's 15-year mandatory sentence. Under ACCA, a "violent

felony" is

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[.]

18 U.S.C. § 924(e)(2)(B) (emphasis added). Johnson II held that

the last of these clauses -- known as the "residual clause" (and

emphasized above), 135 S. Ct. at 2563 -- was void for vagueness.

Then, in Welch v. United States, the Supreme Court held that

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Johnson II had announced a new substantive rule that, as a result,

would apply retroactively on collateral review. 136 S. Ct. 1257,

1268 (2016). So today, ACCA-enhanced sentences that depended on

predicate convictions for offenses qualifying as violent felonies

under ACCA's residual clause are now invalid unless those offenses

are either one of the offenses enumerated in § 924(e)(2)(B)(ii) or

meet the force clause's definition of "violent felony," see id.

§ 924(e)(2)(B)(i).

The Defendants' § 2255 motions asserted that their

convictions under R.I. Gen. Laws § 11-5-2(a) are not convictions

for violent felonies under the force clause. 1 The Defendants

therefore argued that they do not have the three predicate

convictions necessary support their 15-year-plus sentences under

ACCA. R.I. Gen. Laws § 11-5-2(a) establishes, in pertinent part,

that "[e]very person who shall make an assault or battery, or both,

with a dangerous weapon, or with acid or other dangerous substance,

or by fire, or an assault or battery that results in serious bodily

injury shall be guilty of a felony assault." Id. The statute

does not expressly identify the mental state necessary to commit

A/BDW. This ends up complicating things.

1 It is undisputed that ADW does not qualify as a violent felony
as one of ACCA's enumerated offenses, that is, "burglary, arson
. . . extortion, [or another offense that] involves use of
explosives." See 18 U.S.C. § 924(e)(2)(B)(ii).

-5-
 B.

The Defendants' motions came before two different

district judges, who, with the parties' consent, held a joint

hearing and resolved the motions in a jointly issued memorandum

and order. United States v. Sabetta, 221 F. Supp. 3d 210, 213 n.1

(D.R.I. 2016).2 That memorandum and order explained that "Chief

Judge Smith and Judge McConnell independently reached the

conclusions contained" therein. Id.

In deciding whether, post-Johnson II, the Defendants'

convictions under R.I. Gen. Laws § 11-5-2 continued to constitute

convictions for "violent felonies," the district court recognized

that its inquiry was limited to "the fact of conviction and the

statutory definition of the prior offense." Id. at 215 (quoting

Taylor v. United States, 495 U.S. 575, 602 (1990)). This is known

as the "categorical approach." Taylor, 495 U.S. at 602. The

district court explained that, "[t]o satisfy the force clause under

the categorical approach, the use, attempted use, or threatened

use of violent force must be an element of the prior offense."

Sabetta, 221 F. Supp. 3d at 215 (citing Descamps v. United States,

570 U.S. 254, 277 (2013)). As the district court put it, "[t]he

2 The district court's memorandum and order also resolved the
motions of three additional individuals who are not parties to
this appeal.

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facts of the defendant's crime do not matter, only the elements of

the offense do." Id.; see also Bennett v. United States, 868 F.3d

1, 22 (1st Cir. 2017) ("[I]t may seem anomalous that an offense

bearing the name 'aggravated assault' could escape ACCA's reach .

. . . But Congress instructed us to take our cues from an offense's

elements rather than from either its label or the underlying means

by which that offense was carried out in a particular case."

(citing Mathis v. United States, 136 S. Ct. 2243, 2251 (2016)))

withdrawn, 870 F.3d 34, 36 (1st Cir. 2017).

There is a wrinkle to this, though, when a single statute

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

multiple crimes." Mathis, 136 S. Ct. at 2249. Statutes of that

sort are known as "divisible" statutes. Id. When a defendant has

been convicted under a divisible statute, courts employ what is

"labeled (not very inventively) the 'modified categorical

approach.'" Descamps, 570 U.S. at 257. Under the modified

categorical approach, courts are authorized to look at a limited

category of documents -- known as "Shepard documents," see Shepard

v. United States, 544 U.S. 13, 20 (2005) -- to determine "which

alternative formed the basis of the defendant's prior conviction,"

Descamps, 570 U.S. at 257.

Here, the district court first determined that R.I. Gen.

Laws § 11-5-2(a) -- which it described as "not the model of

-7-
clarity" -- "is divisible[,] and that at least one of the offenses

contained within that statute is [A/BDW]." Sabetta, 221 F. Supp.

3d at 216. The district court also concluded that, as the Rhode

Island Supreme Court has recognized, "the act element of [A/BDW]

can be accomplished by the means of an assault, a battery, or

both." Id.; see (State v. Soler, 140 A.3d 755, 763 (R.I. 2016);

see also Mathis, 136 S. Ct. at 2256 (explaining that in determining

whether an alternatively phrased statute is divisible, courts must

"determine whether its listed items are elements or means," and

instructing courts to look first to state law to determine which

is the case). The district court then found, in light of the

Shepard documents the government had introduced, that all of the

Defendants had been convicted of Rhode Island A/BDW. Sabetta, 221

F. Supp. 3d at 217.

As a result, it became incumbent upon the district court

to determine whether Rhode Island A/BDW satisfies ACCA's force

clause. Its analysis proceeded in two steps. First, it queried

whether the mental state of recklessness is sufficient to sustain

a conviction for Rhode Island A/BDW. After surveying the relevant

case law -- a survey we will replicate momentarily -- the district

court tentatively concluded that recklessness is enough. Id. at

220. While explaining that "this is a close call, and our

conclusion is not free from doubt," the district court nonetheless

-8-
found that the rule of lenity compelled the holding that, for

purposes of the Defendants' challenges to their sentences,

"recklessness is sufficient to satisfy a conviction for Rhode

Island A/BDW." Id.

Next, the district court set out to determine whether "a

crime that only requires proving a recklessness mens rea with

respect to the attempted, threatened, or actual use of force

against the person of another [can] qualify as a violent felony

under the ACCA's force clause." Id. at 221. This circuit's

precedent, it concluded, indicated that such crimes cannot satisfy

the force clause. Id. at 223. It therefore held that Rhode

Island A/BDW "is not categorically a violent felony under the

ACCA." Id. at 224. As a result, the district court declined to

reach the Defendants' alternative argument that Rhode Island A/BDW

is not a violent felony under the categorical approach because the

battery form does not require "violent force." Id. at 224 n.12;

see Johnson v. United States, 559 U.S. 133, 140 (2010) ("[I]n the

context of [ACCA's] definition of 'violent felony,' the phrase

'physical force' means violent force -- that is, force capable of

causing physical pain or injury to another person.").

Lastly, the district court rejected the government's

argument that the Defendants had procedurally defaulted on their

Johnson II-based challenges to their sentences by failing to

-9-
challenge the constitutionality of ACCA's residual clause at

sentencing or on direct appeal. Sabetta, 221 F. Supp. 3d at 226.

Any such challenge, the district court reasoned, would have been

"sufficiently novel" at the time "to excuse each of the Defendants'

failure to raise it at sentencing or on direct review." Id. at

227. Finding that the Defendants easily established that they

suffered prejudice from the legal error underpinning their

sentences -- because "if the Defendants were sentenced today, their

sentences would have been statutorily capped at 120 months" -- the

district court announced that it would schedule individual

hearings on the Defendants' motions to vacate and be re-sentenced.

Id.

After the government moved unsuccessfully for

reconsideration, the district court resentenced each of the

Defendants to 120 months' imprisonment. The government now

appeals to us.

II.

A.

As an initial matter, we observe that the government

does not argue that the district court erred in determining that

Rhode Island A/BDW's assault and battery forms are not divisible

from each other. Rather, for purposes of our analysis, the

government urges us to "assume in the [D]efendants' favor that the

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two components are not divisible," thereby waiving any argument to

the contrary. The Defendants agree with the government on this

point. Thus, in light of the parties' agreement that we should

assume that the assault and battery forms of Rhode Island A/BDW

are not divisible, our analysis proceeds under that assumption.

B.

We first take up the assault form of Rhode Island A/BDW.

The government argued below that, consistent with Voisine v. United

States, 136 S. Ct. 2272 (2016), an offense that has only a mens

rea of recklessness may nonetheless satisfy ACCA's force clause.

The district court did not agree. On appeal, while the government

"preserves its Voisine-based position for further review," it

concedes that this circuit's case law now forecloses the argument

that crimes with a mens rea of recklessness may be violent felonies

under the force clause. This concession is based on a correct

understanding of our circuit's precedent. Though, because the

reasons for this are slightly convoluted, we take a moment here to

explain why this is so.

In Bennett, we considered whether Maine aggravated

assault, which requires a mental state of mere recklessness,

constituted a violent felony under ACCA's force clause. 868 F.3d

at 7. We recognized that the petitioner's convictions could

qualify as force-clause violent felonies "[o]nly if causing bodily

-11-
injury with such a reckless mental state does constitute the use

of physical force against the person of another" -- a question

that our circuit and the Supreme Court had left unanswered. Id.

In setting out to answer that question, we first took note of our

holding in United States v. Fish, 758 F.3d 1 (1st Cir. 2014), that

the Massachusetts crime of assault and battery with a dangerous

weapon -- which we found to require only recklessness -- did not

qualify as a crime of violence under 18 U.S.C. § 16(b), which

defines "crime of violence" in a manner "closely analogous" to the

how ACCA's force clause defines "violent felony." Bennett, 868

F.3d at 8 (citing 758 F.3d at 9). Our holding in Fish, in turn,

drew from the Supreme Court's holding in Leocal v. Ashcroft, 543

U.S. 1, 9-10 (2004), that § 16(b) does not reach crimes of

negligence. Fish, 758 F.3d at 8. Though we acknowledged in Fish

that "the Supreme Court explicitly limited its reasoning to

negligence-or-less crimes," we concluded that "Leocal's rationale

would seem to apply equally to crimes encompassing reckless conduct

wherein force is brought to bear accidentally, rather than being

actively employed." Id. at 9.

Bennett also considered the Supreme Court's then-recent

holding in Voisine. Voisine involved 18 U.S.C. § 921(a)(33)(A)'s

definition of "misdemeanor crime of domestic violence" -- for

purposes of 18 U.S.C. § 922(g)(9)'s prohibition on individuals

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convicted of such crimes possessing firearms -- as having an

element of "the use . . . of physical force." Voisine, 136 S. Ct.

at 2276. The Supreme Court held in Voisine that § 921(a)(33)(A)

did encompass crimes of recklessness. Id. at 2279. We recognized

in Bennett that, "to determine how Voisine bears on the question

at hand, we must decide what significance, if any, to attribute to

the seemingly divergent contexts and purposes between ACCA and

§ 922(g)(9)." Bennett, 868 F.3d at 17 (internal quotation marks

omitted). But after a detailed review of those things, we still

found ourselves confronted with a "grievous ambiguity" as to

"whether Congress intended the phrase 'use . . . of physical force

against the person of another' in ACCA's definition of a 'violent

felony' to include or exclude reckless aggravated assault as Maine

defines it." Id. at 23 (quoting United States v. Godin, 534 F.3d

51, 60-61 (1st Cir. 2008)). For that reason, the rule of lenity

brought us to the conclusion that Maine reckless aggravated assault

was not a violent felony under ACCA's force clause. Id.

However, six days after the opinion in Bennett issued,

we received a "Notice of Death" from the government, informing us

that the petitioner had died five days prior to the opinion

issuing. Bennett, 870 F.3d at 35. This prompted us to withdraw

that opinion and vacate the judgment as moot. Id. at 36. This

did not mean, however, that the value of the opinion's reasoning

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as to whether the force clause extends to crimes of recklessness

vanished in a puff of smoke. For, between the dates when the

government moved for us to withdraw the opinion in Bennett and

when we formally did so, we decided United States v. Windley, 864

F.3d 36 (1st Cir. 2017) (per curiam). And that opinion, noting

the possibility of Bennett's future withdrawal, stated that "this

panel, after careful consideration, reached the same conclusion

about whether reckless offenses qualify as violent felonies under

the force clause. Thus, by citing Bennett, we not only follow

precedent that is currently binding but also endorse and adopt its

reasoning as our own." Id. at 37 n.2. Windley, therefore, held

that Massachusetts ABDW, insofar as it may be committed with a

mens rea of mere recklessness, was not a violent felony. On the

basis of this precedent, the government agrees that, if

recklessness is sufficient to be convicted of the assault form of

Rhode Island A/BDW, that offense could not qualify as a violent

felony under the force clause.

We now turn to the question of whether a mental state of

recklessness is, in fact, sufficient for one to be convicted of

Rhode Island A/BDW.

C.

As the district court recognized, State v. Jeremiah

bears substantially on this question. See 546 A.2d 183 (R.I.

-14-
1988), abrogated on other grounds by State v. Jackson, 752 A.2d 5

(R.I. 2000). There -- in taking up a defendant's sufficiency-of-

the-evidence challenge to his conviction for Rhode Island A/BDW --

the Rhode Island Supreme Court opened its analysis by quoting its

1897 decision in State v. Baker, where it set forth that "[a]n

assault, as ordinarily defined, is any unlawful attempt or offer,

with force or violence, to do a corporal hurt to another, whether

from malice or wantonness." Id. at 186 (quoting 38 A. 653, 654

(R.I. 1897)). In Baker, the Rhode Island Supreme Court affirmed

the A/BDW conviction of a defendant who had fired a pistol at or

in the direction of another individual -- an act the court

characterized as "reckless." 38 A. at 654. In support of its

conclusion that the defendant had committed A/BDW, the Baker court

cited multiple other cases showing, it said, "that it is an assault

to . . . recklessly fire a pistol in the direction of another."

Id.

Here, after taking note of the term "wantonness" in

Jeremiah and Baker, the district court observed that "[t]he

authority here is sparse, to be sure, but the decisions of the

Rhode Island Supreme Court suggest that 'wantonness' is synonymous

with 'recklessness.'" Sabetta, 221 F. Supp. 3d at 218. After

reviewing those decisions, and considering the government's

counterarguments, the district court determined that the rule of

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lenity compelled the conclusion that "recklessness is sufficient

to satisfy a conviction for Rhode Island [A/BDW]." Id. at 220.

On appeal, the government argues that while Baker, "an

1897 case[,] suggests one may commit [A/BDW] by 'recklessly

fir[ing] a pistol in the direction of another,' that stray passage

has never once been quoted in the intervening 120 years even though

Baker itself is often cited for other propositions." The

government further contends that, as the post-Baker case law and

other sources demonstrate, "wantonness" is not equivalent to

recklessness, and is sufficiently akin to "intent" to satisfy

ACCA's force clause. The Defendants, meanwhile, maintain that the

district court properly understood Rhode Island law as

sufficiently ambiguous on this point to require invoking the rule

of lenity. We now consider these opposing views of Rhode Island

law.

The government begins by arguing that Jeremiah --

despite setting forth that one may commit A/BDW with "malice or

wantonness" -- stands for three principles that show that Rhode

Island A/BDW requires more than recklessness. The first of these

principles is that § 11-5-2(a) requires proof of an "unlawful offer

to do corporal injury to another under such circumstances as may

create a reasonable apprehension of immediate injury unless the

person so threatened takes action or inaction to avoid it, coupled

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with a present ability to carry the offer into effect." Jeremiah,

546 A.2 at 186-87 (emphasis added). These four emphasized terms,

according to the government, are proof of an intent requirement.

The second relevant principle that Jeremiah espoused, according to

the government, is that "[i]n Baker this court also recognized

that '[t]o constitute an assault with a dangerous weapon it is

necessary that the weapon should be presented at the party intended

to be assaulted, within the distance at which it may do

execution.'" Id. at 186 (citing 38 A. at 654). The language

"intended to be assaulted," the government argues, further shows

that recklessness cannot suffice. And lastly, the third principle

to which the government points is that "the actual present ability

of the defendant to inflict harm on the victim by using a dangerous

weapon is an element of the offense of assault with a dangerous

weapon." Id. (emphasis added). Together, the government

contends, these three principles "undercut any claim that mere

recklessness is enough."

But we do not find Jeremiah to provide particularly

strong evidence that recklessness is insufficient to sustain a

conviction for Rhode Island A/BDW. Indeed, of the passages of

Jeremiah that the government cites, it is only that case's

invocation of Baker's requirement that "the weapon should be

presented at the party intended to be assaulted" that appears to

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suggest an intent requirement. See 38 A. at 654 (emphasis added).

And even this does not provide irrefutable proof. While the word

"intended" undeniably speaks in some measure to an intent

requirement, this word also appears amid a discussion not of the

assailant's mental state, but rather of how the "weapon should be

presented." Id. Thus, the passive "party intended to be

assaulted" is also amenable to the reading that those words, in

this context, simply mean "the would-be victim." Meanwhile, we

find the remaining passages from Jeremiah that the government cites

to be compatible with Rhode Island A/BDW requiring only

recklessness -- for example, that the assailant make an "unlawful

offer" and have the "present ability" to inflict harm. See 546

A.2d at 186-87. Thus, we are unconvinced by the government's

arguments that Jeremiah shows that the word "wantonness" as used

in Baker means something different from "recklessness."

The government also renews its insistence that a

requirement of more than recklessness is evident in State v.

Clifton, 777 A.2d 1272 (R.I. 2001), and State v. Franco, 750 A.2d

415 (R.I. 2000). In Clifton, the Rhode Island Supreme Court upheld

a defendant's conviction for A/BDW because it found that the

evidence introduced at trial "could sufficiently support an

objective inference that Clifton possessed the requisite criminal

intent to harm one or both of [the victims]." 777 A.2d at 1277.

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The government's reliance on Clifton, however, seems to gloss over

the difference between a crime having an intent requirement and a

crime requiring the mental state of "intent." Let us explain. In

the context of criminal law, "intentionally" can be synonymous

with "purposely," see Model Penal Code § 1.13 (Am. Law Inst. 2017),

which is a greater mens rea than "recklessly," see id. § 2.02(2).

But Clifton says only that Rhode Island A/BDW has a "requisite

criminal intent." 777 A.2d at 1277. It does not say that A/BDW

can only be committed "intentionally." And that distinction is

important, because "criminal intent" can also simply mean "mens

rea" or "mental state." See, e.g., Morissette v. United States,

342 U.S. 246, 254-57 (1952) (contrasting strict liability

regulatory offenses with those requiring "criminal intent").

Thus, it is also possible to read Clifton's reference to A/BDW's

"requisite criminal intent" as indicating only that A/BDW is not

a strict liability crime. So, Clifton provides limited insight

as to whether recklessness can suffice for a conviction for Rhode

Island A/BDW.

Franco is likewise uninstructive on this score. As

evidence that Rhode Island A/BDW requires more than recklessness,

the government cites a footnote of that opinion that explains that

"[t]he sixth charge, pertaining to assault with a dangerous weapon,

namely a credit card machine that fell on [the victim's] head, was

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dismissed at the close of evidence because there was no evidence

that defendant or [his accomplice] possessed the intent to do

bodily harm when the machine was yanked from the wall." 750 A.2d

at 418 n.2. But all that this footnote truly indicates is that

the trial judge who dismissed this count appears to have done so

pursuant to a belief that A/BDW requires "intent to do bodily

harm." Whether that belief was correct was not before the court

in Franco, and the opinion appears only to have included that

footnote to explain -- after describing in the main text the

allegations contained in counts one through five and seven -- what

became of count six. See id. at 417-18. Franco, therefore, also

has little bearing on the question of whether Rhode Island A/BDW

requires mere recklessness or something more.

Next, the government cites State v. Hallenbeck, which,

it says, in explaining that one may commit manslaughter "wantonly

or recklessly," indicates that those are two different mental

states. See 878 A.2d 992, 1005 (R.I. 2005). In support of the

notion that wantonness is both distinct from and a more culpable

mental state than recklessness, the government also cites Black's

Law Dictionary, which provides the following definition of

"wanton": "Unreasonably or maliciously risking harm while being

utterly indifferent to the consequences. In criminal law, wanton

usu[ally] connotes malice (in the criminal-law sense), while

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reckless does not." Wanton, Black's Law Dictionary 1815 (10th ed.

2014).

We are unconvinced that Hallenbeck definitively shows

that "wantonly" and "recklessly" are distinct mental states under

Rhode Island law. It seems at least equally reasonable to read

that above-quoted line from Hallenbeck as setting out two

alternative wordings for the same mental state -- an example,

perhaps, of the lexical thoroughness for which courts are known to

have a penchant. See, e.g., Herbert v. Mohawk Rubber Co., 872

F.2d 1104, 1110 (1st Cir. 1989) (explaining that a plaintiff may

make out a prima facie case for employment discrimination in cases

involving workforce reductions by showing, among other things,

"that he was purposefully or intentionally discriminated against

as an individual" (emphasis added)); United States v. Fei Lin, 139

F.3d 1303, 1309 (9th Cir. 1998) (holding that any error in district

court's jury instructions that the government needed to prove

beyond a reasonable doubt "that the defendant 'knowingly

transmitted a communication containing a demand for ransom'" was

harmless because "[b]ased on the evidence, it would not have been

possible for the jury to find that appellants knowingly transmitted

those demands without also finding that appellants purposefully or

intentionally" did so (emphasis added)). Of course, we recognize

that the same could be said for Jeremiah's use of "malice or

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wantonness." See 546 A.2d at 186 (quoting Baker, 38 A. at 654).

But, because the government's objective is to show that Rhode

Island A/BDW is categorically a violent felony, it needs to show

that it would be impossible for a defendant to be convicted of

that offense with a mental state of mere recklessness. And though

Hallenbeck and Black's Law Dictionary's potential equation of

"wantonness" to "malice" may both cut somewhat towards

"wantonness" being distinct from "recklessness," we do not think

that these sources confer certainty (least of all in light of the

Defendants' multiple arguments to the contrary, which we shall

turn to in a moment). Moreover, even if this were not so, and

"recklessness" and "wantonness" were plainly distinct mental

states, the government would still have to clear the additional

hurdle of showing that crimes that can be committed "wantonly"

satisfy the force clause -- a notion for which it offers scant

support.

The government's final argument pertains to R.I. Gen.

Laws § 11-5-2.2 -- titled "Battery--Criminal negligence." That

statute, according to the government, shows that "when the state

legislature wishes to allow for conviction based on a lower mens

rea standard, it knows how to do so." Therefore, we take the

government's argument to go, were recklessness sufficient for a

conviction for Rhode Island A/BDW, then the legislature would have

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used the word "recklessness" somewhere in that offense's statutory

title or definition. But this does not convince us. Negligent

assault, as set out in R.I. Gen. Laws § 11-5-2.2, contrasts with

the separate offense of "Simple assault or battery," codified at

§ 11-5-3. And, it is beyond dispute that a more culpable mental

state than wantonness (e.g., "intent") would support a conviction

for Rhode Island A/BDW. Hence, the legislature's express

provision of the solitary mens rea that could lead to conviction

under § 11-5-2.2 has minimal bearing on our inquiry here: whether

recklessness is above or below Rhode Island A/BDW's threshold mens

rea.

Having reviewed the government's view of how we should

read Rhode Island law, we now turn to the Defendants' contentions.

Broadly, the Defendants argue that, at a minimum, Rhode Island law

is so ambiguous as to Rhode Island A/BDW's mens rea that we should

apply the rule of lenity in their favor. They call our attention

to various sources suggesting that wantonness is a mens rea falling

short of intent, and is effectively equivalent to recklessness.

To begin, the Defendants point out that four years after

deciding Baker, the Rhode Island Supreme Court defined "wantonly"

as "[d]one in a licentious spirit, perversely, recklessly, without

regard to propriety or the rights of others; careless of

consequences, and yet without settled malice." State v. Gilligan,

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50 A. 844, 847 (R.I. 1901). The Defendants also argue that our

own precedent supports this conception of "wantonness." In United

States v. Tavares, we addressed whether the Massachusetts offense

of assault and battery with a dangerous weapon (ABDW) is a crime

of violence under ACCA. 843 F.3d 1, 12 (1st Cir. 2016). We found

the state statute at issue to be divisible, encompassing two

offenses, one of which criminalized "the intentional commission of

a wanton or reckless act . . . causing physical or bodily injury

to another." Id. (quoting Mass. Gen. Laws ch. 265, § 15A(b)). We

treated that form as requiring only a "reckless mens rea." Id.

at 15. And in Windley, we denominated this offense the "reckless

form" of Massachusetts ABDW. 864 F.3d at 37. This, the

Defendants press, demonstrates our at least implicit recognition

that wantonness is tantamount to recklessness. And while we don't

think this point is so forceful as to be dispositive here, we do

accept that it provides indicia that it wouldn't be unreasonable

to read "wantonness" in Baker and Jeremiah as establishing a mens

rea of recklessness.

Next, the Defendants tell us that Rhode Island A/BDW is

a "general intent" crime, for which recklessness can necessarily

suffice. Indeed, in State v. Prout, the Rhode Island Supreme

Court recognized Rhode Island A/BDW as a general intent crime.

996 A.2d 641, 647 (R.I. 2010). And in State v. Sivo, it explained

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that "[g]eneral-intent crimes require only the intention to make

the bodily movement which constitutes the act which the crime

requires." 925 A.2d 901, 914 (R.I. 2007) (internal quotation

marks omitted). This, we think, does tend to add to the

Defendants' contention that recklessness suffices in this

instance, but we also do not find it so forceful as to be

dispositive.

The Defendants next direct us to Rhode Island case law

on simple assault, which, they say, provides further evidence that

Rhode Island A/BDW has a mens rea of mere recklessness. For

example, the Rhode Island Supreme Court has defined assault as "a

physical act of a threatening nature or an offer of corporal injury

which puts an individual in reasonable fear of imminent bodily

harm." Picard v. Barry Pontiac-Buick, Inc., 654 A.2d 690, 694

(R.I. 1995) (quoting Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.

1983)); see also State v. Cardona, 969 A.2d 667, 673 (R.I. 2009)

(reciting the same definition in a felony domestic assault case).

This would seem to leave room for recklessness. And crucially,

in State v. Ashness, the Rhode Island Supreme Court set forth that

A/BDW consists of an assault plus the additional element of the

defendant's "actual present ability to inflict harm on the victim

by using a dangerous weapon." 461 A.2d 659, 666 n.8 (R.I. 1983).

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This too points in the direction of Rhode Island A/BDW requiring

only a mental state of recklessness.

Having considered the parties' urged readings of it, we

do not think that Rhode Island case law provides any resounding

certainty as to whether recklessness is sufficient to support a

conviction for A/BDW. Ultimately, Rhode Island's rather unclear

(and possibly even conflicting) precedent regarding A/BDW's

requisite mental state prevents us from concluding that is

categorically a violent felony. Indeed, it appears possible that,

without departing from controlling case law, a Rhode Island court

could -- relying for example on Jeremiah's provision of

"wantonness" as a sufficient mens rea, see 546 A.2d at 186, and

Gilligan's definition of "wantonly" as "recklessly . . . without

settled malice," see 50 A. at 847 -- uphold a defendant's

conviction for A/BDW when the defendant had a mental state of only

recklessness. And that distinct possibility, consistent with the

dictates of the categorical approach, means that we cannot treat

Rhode Island A/BDW as a violent felony for purposes of ACCA's force

clause. See Mathis, 136 S. Ct. at 2248.

Lastly, given our acceptance of the parties' concession

that battery and assault constitute different factual means of

committing Rhode Island A/BDW, rather than alternative elements of

that offense, we do not need to take up whether the battery form

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of that offense meets the "physical force" component of ACCA's

force clause. Consistent with the categorical approach, our

holding that the assault form of Rhode Island A/BDW does not

satisfy the force clause makes inevitable the conclusion that Rhode

Island A/BDW is not a violent felony under ACCA.

D.

All of this leaves us with one final matter to address.

Having concluded that Rhode Island A/BDW cannot serve as an ACCA

predicate conviction, the district court also rejected the

government's arguments that the Defendants should not be forgiven

for having failed to bring a constitutional challenge to ACCA's

residual clause at sentencing or on direct appeal. The district

rejected this argument, reasoning that the Defendants would not

have had any "reasonable basis" to have challenged the residual

clause prior to Johnson II, and that they therefore had sufficient

cause for failing to take that position. Sabetta, 221 F. Supp.

3d at 225-26.

On appeal, the Defendants argue that the government's

challenge to that determination below is so skeletal as to be

waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990). The government's appellate brief first recites that, on

collateral review, to forgive procedural default, a court must

find both cause and prejudice, or that the petitioner is actually

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innocent. See Damon v. United States, 732 F.3d 1, 4 (1st Cir.

2013) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)).

The government then explains that the district court held "that

all [of the Defendants] had shown cause and prejudice, dismissing

the government's contrary argument." But, rather than renewing

that "contrary argument," or otherwise asserting that the district

court erred, the government simply tells us that because Rhode

Island A/BDW does satisfy the force clause, the Defendants "cannot

show any error, let alone actual prejudice," and that as a result,

we "need not decide whether the district court was mistaken in

finding 'cause.'" Accordingly, because the government has not

invited us to review the district court's holding that the

Defendants did have cause, we refrain from doing so. And because

we agree with the district court that the Defendants suffered

prejudice (in the form of their resultant enhanced sentences), we

uphold its determination that the Defendants' procedural default

does not bar them from the relief they have sought.

III.

Because Rhode Island A/BDW does not constitute a violent

felony under ACCA's force clause, the Defendants no longer have

the three predicate convictions necessary to support their

original sentences. Therefore, the district court's decision

granting their motions under 28 U.S.C. § 2255 is affirmed.

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