United States v. Hart

United States Court of Appeals
For the First Circuit

No. 11-1156

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL HART,

Defendant, Appellant.

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

[Hon. William G. Young, U.S. District Judge]

Before

Boudin and Lipez, Circuit Judges,
and Smith,* District Judge.

Mark W. Shea, with whom Jean LaRoque, were on brief, for
appellant.
Dina Michael Chaitowitz, with whom Glenn A. MacKinlay, were on
brief, for appellee.

March 16, 2012

*
Of the District of Rhode Island, sitting by designation.
 SMITH, District Judge. Michael Hart was convicted of

being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1), and now appeals from his conviction and sentence under

the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"). Hart

argues that the district court erred in denying his motion to

suppress all evidence seized incident to a Terry stop, including a

firearm. He additionally claims that the district court erred in

concluding that his prior conviction for assault and battery with

a dangerous weapon ("ABDW") qualified as a predicate offense under

ACCA. For the reasons set forth below, we affirm both the

conviction and sentence.

I.

We begin by outlining the facts, reciting them "as the

trial court found them, consistent with record support." United

States v. Am, 564 F.3d 25, 27 (1st Cir. 2009) (quoting United

States v. Ruidíaz, 529 F.3d 25, 27 (1st Cir. 2008)) (internal

quotation marks omitted). The district court held a two-day

evidentiary hearing on Hart's motion to suppress at which Trooper

Marc Lavoie, Trooper Jimi Grasso, and Ms. Tiffany Gomes testified.

On July 7, 2009, five Massachusetts State Police troopers

assigned to the Southeastern Massachusetts Gang Task Force,

including Lavoie and Grasso, were dispatched to the area of 102

Griffin Court in New Bedford. Three males had escaped from a

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Massachusetts Department of Youth Services detention center, and

the officers were investigating their whereabouts.

Trooper Lavoie testified that the troopers had been

provided with photographs and physical descriptions of the three

escapees, including information on height, weight, and race, though

Grasso testified that he was only briefed on racial information.

Troopers Grasso and Lavoie saw Hart speaking with a woman at the

rear of 102 Griffin Court, and both troopers testified that, from

a distance, they believed Hart might have been one of the escapees.

Hart, however, was at least six inches taller, more than ten years

older, and one-hundred pounds heavier than any of the fugitives.

His race was the only characteristic he shared with any of the

escapees.

Though the troopers were not in uniform, they were

wearing jackets with gang task force insignia. The troopers

proceeded in Hart's direction, and Hart appeared startled to see

them. Also noting the troopers, the woman with whom he was

speaking yelled into the house that the police were approaching.

At that point, Hart walked briskly away from the troopers

and toward a gray vehicle parked in a nearby alley, bending over

slightly and clutching at his waist as he went. Based on their

training and experience, the troopers believed Hart was carrying a

concealed weapon.

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 Trooper Lavoie followed Hart and observed him turn, or

"blade," his body so as to shield his movement from the troopers'

view as he entered the passenger side of the vehicle. Despite

Hart's best efforts, Lavoie observed him reach his hand under his

shirt and remove an object from his belt area. Sitting down, Hart

deposited the object between his seat and the door.

Behind the wheel was Tiffany Gomes, a woman with whom

Hart had an intimate relationship, who had been waiting for him

while he visited friends at 102 Griffin Court. Trooper Lavoie

moved to the driver's side of the vehicle and told Gomes to put the

car in park and turn off the engine.

At Trooper Lavoie's request, Hart produced

identification, and the trooper recognized Hart as a member of the

Montes Park street gang. Hart rocked back and forth in his seat,

not meeting the trooper's eyes, and then placed his hands on the

dashboard without being asked, behavior Lavoie found peculiar.

Trooper Grasso joined Lavoie and, both moving to the

passenger side, ordered Hart out of the car. Hart appeared very

nervous to both troopers; when asked if he had anything on him Hart

responded, "Who me? I don't think so," before looking at the area

between the seat and the door. Trooper Lavoie followed Hart's gaze

and saw plainly the handle of a handgun.

As one of the troopers handcuffed Hart, he yelled out,

"It's all mine, [Gomes] has nothing to do with it." The troopers

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retrieved the firearm, a .40 caliber Baretta loaded with ten rounds

of ammunition. Hart was read his Miranda rights, and he admitted

possession of the gun and described it in accurate detail.

A federal grand jury returned a one-count indictment on

December 2, 2009, charging Hart with being a felon in possession of

a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).

After an unsuccessful attempt to suppress the evidence, Hart

entered a conditional plea of guilty, the district court concluded

that his criminal record contained three ACCA predicate offenses,

and Hart was sentenced to 180 months' imprisonment, the statutory

minimum under ACCA.

II.

A. The Motion to Suppress

On appeal, Hart challenges the denial of his motion to

suppress the evidence seized during his encounter with Troopers

Lavoie and Grasso. First, Hart argues the troopers lacked

reasonable suspicion to conduct a Terry stop. See Terry v. Ohio,

392 U.S. 1, 19-20 (1968). Hart next takes issue with the propriety

of the troopers' actions after they initiated the stop. Finally,

Hart argues that the district court committed clear error in

finding that the firearm was in plain view.

We review findings of historical fact -- and inferences

drawn from those facts -- for clear error, which exists when we are

left with a "definite and firm conviction that a mistake has been

-5-
committed." United States v. Wright, 582 F.3d 199, 205 (1st Cir.

2009) ("Wright II") (quoting United States v. Espinoza, 490 F.3d

41, 46 n.2 (1st Cir. 2007)) (internal quotation marks omitted). We

review legal conclusions made on the denial of a suppression motion

de novo. United States v. McGregor, 650 F.3d 813, 819-20 (1st Cir.

2011). This Court "will uphold a denial of a motion to suppress if

any reasonable view of the evidence supports it." Wright II, 582

F.3d at 205-06 (quoting United States v. Coccia, 446 F.3d 233, 237

(1st Cir. 2006)) (internal quotation marks omitted).

A temporary police detention constitutes a seizure and,

therefore, must be reasonable. Ruidíaz, 529 F.3d at 28 (citing

Terry, 392 U.S. at 19; United States v. Chhien, 266 F.3d 1, 5-6

(1st Cir. 2001)). Officers must have reasonable suspicion, that

is, "a particularized and objective basis for suspecting the

particular person stopped of criminal activity." United States v.

Cortez, 449 U.S. 411, 417-18 (1981). The officer's suspicion must

be both particular, in that it is "grounded in specific and

articulable facts," United States v. Hensley, 469 U.S. 221, 229

(1985), and objective, such that a reasonable officer in similar

circumstances also would harbor suspicion. See Espinoza, 490 F.3d

at 47 (citing United States v. Romain, 393 F.3d 63, 74 (1st Cir.

2004)). An inquiry into reasonableness requires a reviewing court

to consider the totality of the surrounding circumstances,

"tak[ing] care not to evaluate facts in splendid isolation" but

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"apprais[ing] [them] in the context in which they occurred."

United States v. Pontoo, 666 F.3d 20, 29 (1st Cir. 2011); see also

Ruidíaz, 529 F.3d at 29 (stating that a reasonableness

determination requires a reviewing court to evaluate the totality

of the circumstances (citing Romain, 393 F.3d at 71)).

The Supreme Court has held that a defendant's

apprehensive, evasive behavior may further heighten reasonable

suspicion and that flight from law enforcement is a clear act of

evasion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (citations

omitted). We have described flight as unprovoked running upon

recognizing the police, Wright II, 582 F.3d at 210, and have

concluded that acts like warily looking over one's shoulder

contribute to an officer's reasonable suspicion. United States v.

Aitoro, 446 F.3d 246, 252 (1st Cir. 2006). An officer may stop an

individual in order to "resolve the ambiguity" in conduct that is

lawful but oblique and unusual. Wardlow, 528 U.S. at 125.

The district court concluded that the stop was justified

based on officer safety, reasoning that officers securing an area

to conduct an investigation could stop an individual present at the

scene whom they reasonably suspected of concealing a weapon. Hart

counters that officer safety only becomes relevant after officers

have executed a legitimate Terry stop. We may affirm the district

court's decision on any ground made manifest in the record, Spencer

v. Roche, 659 F.3d 142, 145 (1st Cir. 2011), and we do not reach

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Hart's contention as to the district court's rationale because,

based on the totality of the circumstances, we hold that the

troopers had reasonable suspicion to stop Hart.

Here, Hart's reaction to the police revealed a "series of

acts, each of them perhaps innocent in itself, but which taken

together warranted further investigation." Terry, 392 U.S. at 22.

The record reveals that Hart appeared startled to see the police

and almost immediately stepped quickly away from them. He hunched

over while he walked; his hand never left his waistband. Entering

the vehicle, Hart attempted to shield his movement from the

troopers' view, but Lavoie saw him pull an object from his

waistband and place it beside his seat. Observing this factual

medley, Trooper Lavoie reasonably suspected that Hart was engaged

in criminal mischief.1 See Wright II, 582 F.3d at 212-13 (holding

that officers had reasonable suspicion where defendant leaned

forward in the back seat of a car, quickly exited as if recognizing

an unmarked car as a police car, ran in the opposite direction,

clutched at his side, and refused to stop when commanded); see also

Aitoro, 446 F.3d at 252-53 (concluding that officers had reasonable

1
One factor in evaluating the totality of the circumstances
is the character of the area in which the defendant was seized, a
factual issue on which the district court made no finding. See
United States v. Wright, 485 F.3d 45, 53-54 (1st Cir. 2007)
("Wright I") (citing United States v. Arvizu, 534 U.S. 266, 273
(2002)). The government urges us to draw our own conclusion;
however, we decline this invitation because this is a factual issue
best left to the district court and, in the end, not necessary to
our conclusion.

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suspicion where defendant was apprehended in a high-crime area,

exclaimed "Oh shit" upon seeing the police, ran in the opposite

direction, looked warily over his shoulder, and clutched at his

waistband where officers noticed a bulge); cf. United States v.

Camacho, 661 F.3d 718, 726 (1st Cir. 2011) (holding that there was

no reasonable suspicion where officers observed defendant walking

in a normal fashion in the opposite direction of a recent street

fight, and defendant did not appear apprehensive or nervous at the

officers' approach).

Hart implies that, even if these observations suggest he

was concealing a weapon, this may not form the basis for reasonable

suspicion because carrying a concealed weapon is not a crime in

Massachusetts. But what struck the troopers was not just that Hart

appeared to be carrying a concealed object, but that he

painstakingly concealed that object from their view and attempted

to hide it in the vehicle. Hart's behavior signaled that what he

carried was unlawful and, therefore, caused the troopers to

reasonably suspect criminal conduct.

Next, Hart disputes the propriety of the troopers'

actions after they initiated the investigatory stop.2 An officer's

conduct throughout a Terry encounter must be "fairly responsive to

2
Hart specifically argues that the troopers lacked reasonable
suspicion to search him pursuant to the investigatory stop. Yet,
the record indicates that the troopers never actually conducted a
protective frisk. We can only assume, as the government did in its
briefing, that Hart's argument pertains to the scope of the Terry
encounter, which concluded when the troopers discovered the gun.

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the emerging tableau," Chhien, 266 F.3d at 6, and reasonableness is

the touchstone. Romain, 393 F.3d at 71; see also Ruidíaz, 529 F.3d

at 29 ("The propriety of an officer's actions after an initial stop

depends on what the officer knows (or has reason to believe) and

how events unfold." (quoting Romain, 393 F.3d at 71) (internal

quotation marks omitted)).

The parties agree that Trooper Lavoie initiated the stop

when he asked Gomes to place the car in park and turn off the

engine. From there, Hart was recognized as a member of the Montes

Park gang, appeared nervous, rocked back and forth in his seat,

avoided eye contact, and placed his hands on the dashboard without

being asked. It was at this point that the troopers, already

suspecting Hart had a weapon, ordered him out of the car and

discovered the handgun in plain view. Based on the unfolding

events, both preceding and pursuant to the investigatory stop, we

conclude that the officers responded reasonably throughout the

encounter. See Ruidíaz, 529 F.3d at 29.

Finally, Hart argues that it was clear error for the

district court to credit the troopers' testimony that the firearm

was in plain view. Instead, he urges that the district court

should have credited Gomes's testimony that the gun was located in

a plastic bag in the backseat of the vehicle. We review

credibility findings for clear error, a standard highly deferential

to the district court's conclusions. McGregor, 650 F.3d at 820.

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 In assessing the credibility of the various witnesses,

the district court was well within its discretion. Among other

things, the court noted that Gomes was not initially honest about

her intimate relationship with Hart and that this relationship,

once revealed, established a bias. We defer to the district

court's conclusion that the troopers' testimony was more credible

concerning the location of the gun.

Accordingly, we affirm the district court's denial of Hart's

motion to suppress.

B. ACCA Predicate Offense

We move on to the sentencing issue raised by the

defendant. To be sentenced pursuant to ACCA, Hart had to have been

convicted of three prior violent felonies, serious drug offenses,

or a combination thereof. 18 U.S.C. § 924(e)(1). We review de

novo whether Hart's Massachusetts conviction for ABDW categorically

qualifies as an ACCA predicate offense. See United States v.

Dancy, 640 F.3d 455, 464 (1st Cir. 2011) (citing United States v.

Pakala, 568 F.3d 47, 54 (1st Cir. 2009)).

ACCA defines a "violent felony" 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.

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18 U.S.C. § 924(e)(2)(B). Clause (i) is referred to as the "force

clause," while the portion of clause (ii) following the enumerated

offenses is called the "residual clause." Dancy, 640 F.3d at 465

(citing United States v. Holloway, 630 F.3d 252, 256 (1st Cir.

2011)).

Under either clause, we take a categorical approach in

determining whether a conviction qualifies as an ACCA predicate

offense, meaning we "consider only the offense's legal definition,

forgoing any inquiry into how the defendant may have committed the

offense." Holloway, 630 F.3d at 256 (citing Begay v. United

States, 553 U.S. 137, 141 (2008); Taylor v. United States, 495 U.S.

575, 600 (1990)). State court construction of the relevant state

law dictates our result. Holloway, 630 F.3d at 259. Our analysis

is complete if the statute subsumes only ACCA predicate offenses.

See id. Where the statute encompasses multiple offenses, and not

all of the offenses qualify as ACCA predicates, a district court

may consult so-called Shepard documents -- which include the

indictment, plea colloquy, and jury instructions -- to determine

the offense of conviction. United States v. Giggey, 589 F.3d 38,

41 (1st Cir. 2009) (citing Shepard v. United States, 544 U.S. 13,

26 (2005); Taylor, 495 U.S. at 602). If the Shepard documents

prove inconclusive, such that the court cannot ascertain the

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offense of conviction, the conviction cannot qualify as an ACCA

predicate. Holloway, 630 F.3d at 257.

An offense qualifies under ACCA's residual clause if it

is "burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk

of physical injury to another."3 18 U.S.C. § 924(e)(2)(B)(i). The

offense must (1) present a degree of risk similar to the degree of

risk posed by the enumerated offenses, and (2) be roughly similar

in kind to the enumerated offenses. Begay, 553 U.S. at 143.

Offenses similar in kind "typically involve purposeful, violent,

and aggressive conduct." Id. at 144-45 (citation and internal

quotation marks omitted); see also Dancy, 640 F.3d at 466.

We have previously held that Massachusetts assault with

a dangerous weapon ("ADW") qualifies as an ACCA predicate offense

under the force clause,4 Am, 564 F.3d at 33, and that ABDW is a

predicate offense under the residual clause of the career offender

3
We reject Hart's argument that the residual clause is
unconstitutionally vague. See James v. United States, 550 U.S.
192, 210 n.6 (2007) ("The statutory requirement that an
unenumerated crime 'otherwise involv[e] conduct that presents a
serious potential risk of physical injury to another' is not so
indefinite as to prevent an ordinary person from understanding what
conduct it prohibits.") (alteration in original) (citation
omitted).
4
ADW is a lesser-included offense of ABDW. See Commonwealth
v. Appleby, 402 N.E.2d 1051, 1058 (Mass. 1980).

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provision of the United States Sentencing Guidelines, U.S.S.G. §

2K2.1(a)(2).5 United States v. Glover, 558 F.3d 71, 79-82 (1st

Cir. 2009). Hart urges us to revisit our ABDW precedent in light

of the Supreme Court's decision in Johnson v. United States, 130 S.

Ct. 1265 (2010), and our subsequent decision in United States v.

Holloway, 630 F.3d at 262.

Johnson called for federal courts to use state court

construction of state law in determining whether a state conviction

qualified as a predicate offense under ACCA. 130 S. Ct. at 1269.

The Johnson Court determined that a slight touching, "such as a tap

on the shoulder without consent," would satisfy a Florida battery

statute, and concluded that such a conviction did not categorically

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

1269-71 (quoting State v. Hearns, 961 So.2d 211, 219 (Fla. 2007))

(alteration and internal quotation marks omitted). Johnson

prompted our decision in Holloway, in which we held that a

conviction for Massachusetts simple assault and battery ("AB") did

not bring the crime under the purview of ACCA's residual clause

because the statute encompasses reckless simple AB, an offense

which does not involve the requisite purposeful conduct. Holloway,

5
The Sentencing Guidelines' term "crime of violence" and
ACCA's term "violent felony" are defined almost identically. See
United States v. Holloway, 630 F.3d 252, 254 n.1 (1st Cir. 2011)
(citing United States v. Willings, 588 F.3d 56, 58 n.2 (1st Cir.
2009)). Accordingly, "decisions construing one term inform the
construction of the other." Id. (quoting Willings, 588 F.3d at 58
n.2) (internal quotation marks omitted).

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630 F.3d at 262; see also Dancy, 640 F.3d at 467. Hart argues

that, because ABDW also may be committed recklessly, it cannot

qualify as a categorical ACCA predicate. Accordingly, we consider

whether our holding in Holloway requires a different result than

the one obliged by Glover, and we conclude that it does not.

Pursuant to the residual clause analysis as outlined in

Begay, we first evaluate ABDW's comparative degree of risk. 553

U.S. at 143. The Massachusetts ABDW statute criminalizes "an

assault and battery upon another by means of a dangerous weapon,"

Mass. Gen. Laws ch. 265, § 15A(b), and the Massachusetts Supreme

Judicial Court has defined the offense to require

that the elements of assault be present, that
there be a touching, however slight, that that
touching be by means of the weapon, and that
the battery be accomplished by use of an
inherently dangerous weapon, or by use of some
other object as a weapon, with the intent to
use that object in a dangerous or potentially
dangerous fashion.

Commonwealth v. Appleby, 402 N.E.2d 1051, 1059 (Mass. 1980)

(internal citations omitted).

ABDW clearly poses a serious potential risk of injury,

comparable to the degree of risk posed by the enumerated offenses,

as the definitional element of the crime is a touching by means of

a dangerous weapon. See Glover, 558 F.3d at 81. Massachusetts

case law recognizes that weapons may be dangerous either "per se"

or "as used." Appleby, 402 N.E.2d at 1056-57, 1059. A per se

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dangerous weapon is an instrumentality designed to cause death or

great bodily harm, and defendants "are charged with knowledge of

[its] inherently dangerous nature," Appleby, 402 N.E.2d at 1059 n.6

(citations omitted); see also Commonwealth v. Farrell, 78 N.E.2d

697, 702 (Mass. 1948), whereas an otherwise innocent instrument is

considered a dangerous weapon if, "as used by the defendant, [it]

is capable of producing serious bodily harm."6 Commonwealth v.

Tevlin, 741 N.E.2d 827, 833 (Mass. 2001) (citations omitted)

(internal quotation marks omitted); see also Appleby, 402 N.E.2d at

1057 (listing cases); Farrell, 78 N.E.2d at 702. In light of these

definitions, "logic dictates that ABDW ineluctably poses a serious

potential risk of physical injury" because the defendant effected

the touching with an instrument designed to cause, or wielded an

object in a manner capable of producing, serious bodily harm.

Glover, 558 F.3d at 81.

The second prong of the Begay inquiry requires an offense

to be roughly similar in kind to the enumerated offenses in that it

must "typically involve purposeful, violent, and aggressive

conduct." 553 U.S. at 144-45. Hart seizes on the characteristic

of purposefulness, maintaining that ABDW categorically cannot be

classified as an ACCA predicate because the statute encompasses

6
Whether a weapon is found dangerous as used depends on the
characteristics of the object, the way in which the defendant
manipulated it, and the details surrounding the assault and the use
of the instrument. Commonwealth v. Tevlin, 741 N.E.2d 827, 833
(Mass. 2001) (citation omitted).

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reckless conduct, see Holloway, 630 F.3d at 261, and he points to

several Massachusetts cases in which ABDW was committed recklessly.

See, e.g., Commonwealth v. Cruzado, 901 N.E.2d 1245, 1249 (Mass.

App. Ct. 2009); Commonwealth v. Fettes, 835 N.E.2d 639, 640 (Mass.

App. Ct. 2005); Commonwealth v. Burno, 487 N.E.2d 1366, 1369 (Mass.

1986); Commonwealth v. Broderick, 450 N.E.2d 1116, 1117 (Mass. App.

Ct. 1983); see also Commonwealth v. Filoma, 943 N.E.2d 477, 482-83

(Mass. App. Ct. 2011). It is true that an ABDW conviction may rest

on a recklessness theory,7 and it is not insignificant that

reckless ABDW may be committed with a seemingly innocent object

used in a dangerous fashion, as in the case of reckless, vehicular

ABDW.8 See, e.g., Cruzado, 901 N.E.2d at 1249; Burno, 487 N.E.2d

7
Massachusetts ABDW may be committed (1) intentionally or (2)
wantonly or recklessly. Commonwealth v. Burno, 487 N.E.2d 1366,
1368-69 (Mass. 1986). The former theory requires "the intentional
and unjustified use of force upon the person of another, however
slight." Id. (quoting Commonwealth v. McCan, 178 N.E. 633, 634
(Mass. 1931)) (internal quotation marks omitted); see also
Commonwealth v. Ford, 677 N.E.2d 1149, 1151 (Mass. 1997). The
latter calls for "the intentional commission of a wanton or
reckless act (something more than gross negligence) causing
physical or bodily injury to another." Burno, 487 N.E.2d at 1369
(citation omitted); see also Ford, 677 N.E.2d at 1151. In the case
of reckless or wanton ABDW, the victim's injury must be "more than
transient or trifling" and severe enough to interfere with health
or comfort. Burno, 487 N.E.2d at 1370. Regardless of the
underlying theory, ABDW requires "general intent to do the act
causing injury," and proof of intent to commit the lesser-included
offense of ADW will satisfy the inquiry. Appleby, 402 N.E.2d at
1059 ("Once an actor intends to commit assault with an object
capable of causing bodily harm, he is threatening to use the
instrumentality in a dangerous fashion." (footnote omitted)).
8
In Massachusetts, conduct that underlies a conviction for
operating under the influence ("OUI") and causing serious bodily

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at 1369. But this fact pattern does not represent the vast

majority of ABDW convictions, and our analysis under the residual

clause is explicitly, and necessarily, limited to the "ordinary

case." James v. United States, 550 U.S. 192, 208 (2007).

In United States v. Dancy, we examined the crime of

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

that ABPO requires additional elements, which distinguish it from

simple AB, ensuring the underlying conduct is typically purposeful

as required by Begay. Dancy, 640 F.3d at 469. In that case, we

suggested that ABDW, like ABPO, also includes additional elements

that distinguish it from simple AB, see id. at 467, that is, ABDW

requires the battery to be perpetrated by means of a dangerous

weapon, Mass. Gen. Laws ch. 265, § 15A(b). In contrast to simple

AB, which merely requires "that the defendant's conduct involve[]

a high degree of likelihood that substantial harm will result to

another" or "disregard of probable harmful consequences to another"

resulting in injury, Holloway, 630 F.3d at 261 (quoting

injury may also be charged as ABDW. See, e.g., Commonwealth v.
Filoma, 943 N.E.2d 477, 482-83 (Mass. App. Ct. 2011) (defendant
convicted of ABDW and OUI causing serious bodily injury, but OUI
conviction reversed for lack of evidence); Commonwealth v. Kenney,
772 N.E.2d 53, 54 n.1 (Mass. App. Ct. 2002) (noting that defendant
was indicted for ABDW and OUI causing serious bodily injury, but
acquitted of ABDW). As Begay expressly held, a mere conviction for
driving under the influence of alcohol ("DUI") does not qualify as
an ACCA predicate, because DUI is a strict liability crime and does
not typically involve purposeful, violent, and aggressive behavior.
553 U.S. at 144-46. However, the conduct captured at the
intersection of the ABDW and OUI statutes underlies a decided
minority of ABDW cases.

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Commonwealth v. Welch, 450 N.E.2d 1100, 1102-03 (Mass. App. Ct.

1983)) (internal quotation marks omitted), ABDW requires the

defendant to have wielded a dangerous weapon and effectuated a

touching using that weapon.

The objective of ACCA, moreover, is to identify prior

convictions which indicate that "an offender, later possessing a

gun, will use that gun deliberately to harm a victim." Begay, 553

U.S. at 145. The residual clause is broad by design to capture a

range of crimes indicative of dangerousness. "Adjectives like

'purposeful' and 'aggressive' denote qualities that are ineluctably

manifested in degree and appear in different combinations."9

United States v. Williams, 529 F.3d 1, 7 (1st Cir. 2008) (footnote

omitted). ACCA's enumerated offenses must only "typically" involve

purposeful conduct, Dancy, 640 F.3d at 468 (quoting Begay, 553 U.S.

at 144-45), and so we must look to the usual circumstances of the

crime, "not allow[ing] hypothetical fact patterns" to negate

commonsense. Dancy, 640 F.3d at 468. In considering the "ordinary

case[]" of ABDW, James, 550 U.S. at 208, we must conclude that a

composite of purposeful, violent, and aggressive conduct is the

norm. See Begay, 553 U.S. at 144-45. Nothing in our holding in

9
The enumerated offenses themselves demonstrate that "violent
felony" describes a spectrum of dangerous conduct, embodying
various attributes of purposefulness, violence, and aggression.
For instance, burglary contemplates purposefulness, but not
necessarily conduct that is deliberately violent or aggressive as
a matter of course. United States v. Williams, 529 F.3d 1, 7 n.7
(1st Cir. 2008).

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Holloway changes our conclusion in Glover, and we hold that a

conviction for Massachusetts ABDW qualifies as a predicate offense

under ACCA's residual clause, pretermitting the need to analyze it

under the force clause.10

III.

For the reasons provided above, we affirm Hart's conviction

and sentence.

10
We additionally note that the government, in its brief and
in a letter submitted pursuant to Federal Rule of Appellate
Procedure 28(j), argues that Hart's conviction for resisting arrest
also qualifies as an ACCA predicate offense. Although the district
court did not consider this conviction at sentencing, we agree with
the government that Hart's resisting arrest conviction qualifies as
an ACCA predicate. See United States v. Curet, No. 10-1176, 2012
WL 75392, at *11 n.12 (1st Cir. Jan. 11, 2012); United States v.
Weekes, 611 F.3d 68, 72-73 (1st Cir. 2010), cert. denied, 131 S.
Ct. 3021 (2011); see also United States v. Almenas, 553 F.3d 27, 34
(1st Cir. 2009) (holding that resisting arrest is a qualifying
crime under the residual clause of U.S.S.G. § 4B1.2(a)).

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