United States Court of Appeals
For the First Circuit
No. 11-1773
UNITED STATES OF AMERICA,
Appellee,
v.
MIKE K. JONAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Thompson, Selya and Dyk,*
Circuit Judges.
Lenore Glaser, with whom Law Office of Lenore Glaser was on
brief, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
August 8, 2012
___________
*Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Mike K. Jonas
argues that, for the purpose of determining the applicability of
the definition of "crime of violence" contained in the career
offender guideline, USSG §4B1.2(a), any use of his Massachusetts
conviction for assault and battery on a correctional officer
(ABCO), Mass. Gen. Laws ch. 265, § 13D, is foreclosed by the
rationale of our prior decision in United States v. Holloway, 630
F.3d 252 (1st Cir. 2011). The government demurs, arguing that we
should apply the rationale of our post-Holloway decision in United
States v. Dancy, 640 F.3d 455 (1st Cir. 2011). The district court
agreed with the government, and so do we.
The relevant facts are susceptible to a succinct summary.
In the court below, the defendant pleaded guilty to two counts:
possessing counterfeit securities and possessing a firearm as a
felon. 18 U.S.C. §§ 513(a), 922(g)(1). The revised presentence
investigation report recommended a guideline sentencing range (GSR)
of 70 to 87 months. This calculation was driven, in part, by a
provision in the federal sentencing guidelines calling for an
increased base offense level if a defendant who is convicted of
unlawful firearm possession has previously "sustain[ed] at least
two felony convictions of either a crime of violence or a
controlled substance offense." USSG §2K2.1(a)(2). For this
purpose, the guideline cross-references to USSG §4B1.2(a) to supply
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the definition for a "crime of violence." USSG §2K2.1, comment.
(n.1).
At the disposition hearing, the defendant conceded that
he had a prior drug conviction that constituted a predicate felony
under the career offender guideline. He argued, however, that the
second predicate felony relied upon by the government — his
conviction for ABCO — was not a conviction for a crime of violence
and, thus, could not qualify as the essential second predicate.
The district court concluded that ABCO was properly classified as
a crime of violence, applied section 2K2.1(a)(2), and — after
varying downward from the GSR, see 18 U.S.C. § 3553(a) — imposed a
60-month incarcerative term. This timely appeal ensued.
This is a rifle-shot appeal: it turns exclusively on the
scope of the phrase "crime of violence" as that phrase is used in
the federal sentencing guidelines. This question engenders de novo
review. United States v. Williams, 529 F.3d 1, 3 (1st Cir. 2008).
Under the career offender guideline, a crime of violence
is any offense punishable by more than one year of imprisonment
that either "(1) has as an element the use, attempted use, or
threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another." USSG §4B1.2(a).
This definition is nearly identical to the definition of a "violent
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felony" contained in the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(2)(B). Recognizing this resemblance, courts
consistently have held that decisions construing one of these
phrases generally inform the construction of the other. See, e.g.,
Holloway, 630 F.3d at 254 n.1; United States v. Richards, 456 F.3d
260, 263 n.2 (1st Cir. 2006). Consequently, we refer to both
bodies of jurisprudence seamlessly.1 See United States v. Hart,
674 F.3d 33, 41 n.5 (1st Cir. 2012); United States v. Willings, 588
F.3d 56, 58 n.2 (1st Cir. 2009).
Under binding Supreme Court precedent, we must take a
categorical approach to the question of whether a crime ranks as a
crime of violence. See Sykes v. United States, 131 S. Ct. 2267,
2272 (2011). Our focus is on the elements of the offense as
delineated in the statute of conviction (as judicially glossed) and
the standard charging language. See Johnson v. United States, 130
S. Ct. 1265, 1269-70 (2010); Dancy, 640 F.3d at 468. This paradigm
requires that we eschew consideration of the offender's particular
conduct. See Sykes, 131 S. Ct. at 2272; James v. United States,
550 U.S. 192, 202 (2007).
1
This congruence between "crime of violence" and "violent
felony" is especially important here. The key precedents upon
which the parties rely (Holloway and Dancy) are both cases
involving whether or not a particular offense constitutes a violent
felony under the ACCA. The reasoning of those cases is fully
transferrable to the precincts patrolled by the career offender
guideline.
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Under the relevant Massachusetts statute, assault and
battery can be committed in various ways — some that may involve
the use of violent force and some that may not. See Holloway, 630
F.3d at 254-60. Thus, the specification set out in section
4B1.2(a)(1), sometimes called the "force clause," Hart, 674 F.3d at
41, is not categorically applicable. See Holloway, 630 F.3d at
254-60. Assuming, favorably to the defendant, that simple assault
and battery and assault and battery on a correctional officer are
analyzed in the same way for purposes of the force clause — and the
government has not suggested the contrary — for ABCO to be regarded
categorically as a crime of violence, it must fit within the
"otherwise clause" of the definition set out in the career offender
guideline. So viewed, the putative predicate must be an offense
that "otherwise involves conduct that presents a serious potential
risk of physical injury to another." USSG §4B1.2(a)(2).
To qualify as a crime of violence under the otherwise
clause, an 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." Hart, 674
F.3d at 41 (citing Begay v. United States, 553 U.S. 137, 143
(2008)). With respect to the first of these criteria (degree of
risk), "the proper inquiry is whether the conduct encompassed by
the elements of the offense, in the ordinary case, presents a
serious potential risk of injury to another." James, 550 U.S. at
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208. This determination hinges on a commonsense assessment of the
risk of violence that typically ensues during the commission of the
crime. See Sykes, 131 S. Ct. at 2273-74; James, 550 U.S. at 203-
07.
With respect to the second criterion (similar in kind),
offenses that involve stringent mens rea requirements are easily
captured. See Sykes, 131 S. Ct. at 2275-76; United States v.
Grupee, 682 F.3d 143, 149 (1st Cir. 2012) (Souter, J.). Strict
liability, negligence, or recklessness crimes are more elusive.
See Sykes, 131 S. Ct. at 2275-76; Begay, 553 U.S. at 144-46.
The Supreme Court has crafted a touchstone for the
similar in kind inquiry: courts must ask whether, categorically
speaking, putative predicate offenses "involve[] purposeful,
violent, and aggressive conduct." Williams, 529 F.3d at 7 (citing
Begay, 553 U.S. at 144-45). This question is sometimes difficult
to answer. "Adjectives like 'purposeful' and 'aggressive' denote
qualities that are ineluctably manifested in degree and appear in
different combinations; they are, therefore, imprecise aids." Id.
Mindful of this inherent imprecision, we have emphasized that an
offense need only be "'roughly similar' in kind to the enumerated
offenses." Dancy, 640 F.3d at 468 (quoting Begay, 553 U.S. at
143).
In the case at hand, the defendant concedes that he was
charged with, and convicted of, ABCO. He argues, however, that
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ABCO fails both the degree of risk and similar in kind
requirements. Determining whether these requirements are satisfied
is a matter of federal law. See United States v. Giggey, 551 F.3d
27, 39 (1st Cir. 2008) (en banc).
We start with the similar in kind inquiry. The
defendant's argument is straightforward. It depends on Holloway,
in which we held that "because the Massachusetts simple assault and
battery statute covers multiple offenses, at least one of which,
reckless battery, is categorically not a violent felony, a court
may only rely on an assault and battery conviction if it can
ascertain that the defendant was convicted of the violent form of
the offense (e.g., harmful battery)." 630 F.3d at 262.2 The
defendant notes that there is nothing in the charging language that
indicates how he committed ABCO. Building on this foundation, he
maintains that ABCO, if committed recklessly, is no different than
the simple assault and battery offense that Holloway determined did
not qualify as a violent felony. See id. (discussing Mass. Gen.
Laws ch. 265, § 13A). As he sees it, the mere fact that an assault
2
Under Massachusetts law, simple assault and battery is a
lesser included offense of assault and battery on a public
employee. See Commonwealth v. Colon, 958 N.E.2d 56, 68 (Mass. App.
Ct. 2011); Commonwealth v. Rosario, 430 N.E.2d 866, 866 (Mass. App.
Ct. 1982). Both assault and battery on a correctional officer and
assault and battery on a police officer are species of the broader
crime of assault and battery on a public employee. See Mass. Gen.
Laws ch. 265, § 13D.
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and battery is committed on a particular type of person (e.g., a
correctional officer) does not transmogrify the act.
Holloway, however, cannot be read in a vacuum. In Dancy,
640 F.3d at 467-70, decided a few months after Holloway, we
distinguished simple assault and battery, Mass. Gen. Laws ch. 265,
§ 13A, from assault and battery on a police officer (ABPO), id.
§ 13D. We explained that, under the Massachusetts statute, ABPO
requires the prosecution to prove three elements in addition to
those needed for simple assault and battery: that the victim was a
police officer, that he was acting in his official capacity, and
that the defendant knew as much. See Dancy, 640 F.3d at 468;
accord Mass. Gen. Laws ch. 277, § 79 (setting forth standard
charging language); Commonwealth v. Colon, 958 N.E.2d 56, 68 (Mass.
App. Ct. 2011). We then concluded that even under a recklessness
theory of assault and battery liability, the additional elements
required for an ABPO conviction ensure that "purposeful conduct is
the norm," making ABPO sufficiently similar in kind to the
enumerated offenses to qualify as a violent felony. Dancy, 640
F.3d at 466-69 (citing with approval United States v. Fernandez,
121 F.3d 777, 779-80 (1st Cir. 1997), for the proposition that ABPO
is a categorical crime of violence).
Dancy is the beacon by which we must steer. The text of
Mass. Gen. Laws ch. 265, § 13D is generic in nature, proscribing
assault and battery on a "public employee." It "is separate and
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distinct from the statute criminalizing simple [assault and
battery]." Dancy, 640 F.3d at 468. It applies in exactly the same
way to police officers, see Colon, 958 N.E.2d at 68, as to
correctional officers, see Commonwealth v. Ford, 468 N.E.2d 663,
665 (Mass. App. Ct. 1984). And even though the Massachusetts
Supreme Judicial Court has not definitively set out the elements
required for ABCO under section 13D, there is no principled basis
for believing that the elements are any different than the elements
set out for ABPO. Cf. Commonwealth v. Deschaine, 932 N.E.2d 854,
861 (Mass. App. Ct. 2010) (explaining that a conviction for assault
and battery on a correctional officer under Mass. Gen. Laws ch.
127, § 38B requires the Commonwealth "to prove the defendant knew
that the person he struck was a correction officer."). Indeed, the
defendant appears to concede that the elements of ABCO parallel
those of ABPO. See Appellant's Br. at 6 ("The crime of assault and
battery on a correctional officer adds, as an element of the
offense, that the victim was a correctional officer, known to the
defendant as such, and acting in his or her official capacity.").
As in ABPO, the additional elements of ABCO — that the
victim was a correctional officer, that he was acting in an
official capacity, and that the defendant knew as much — ensure
that "purposeful conduct is the norm." See Dancy, 640 F.3d at 468-
70. This means, then, that ABCO — like ABPO — is roughly similar
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in kind to the offenses enumerated in connection with the
"otherwise" clause of section 4B1.2(a)(2).
The defendant's fallback position is that ABCO presents
a substantially lesser degree of risk than ABPO and, therefore,
falls below the level of risk presented by the enumerated offenses.
The defendant contends that, unlike police officers, correctional
officers are usually unarmed and interact informally with
prisoners. This contention rings hollow.
The proper comparison in a degree of risk analysis is
between the risks typically accompanying the offense of conviction
and the risks typically accompanying the offenses enumerated in
connection with the "otherwise" clause of the career offender
guideline. See Hart, 674 F.3d at 41. Such a comparison guides the
requisite determination as to whether categorically speaking a
particular offense "presents a serious potential risk of physical
injury to another." Sykes, 131 S. Ct. at 2273; see James, 550 U.S.
at 203. By its very nature, this is an "inherently probabilistic"
analysis. Dancy, 640 F.3d at 470 (internal quotation marks
omitted).
We have little difficulty in concluding that ABCO
typically presents a serious potential risk of injury to another
that is not only comparable to, but arguably greater than, the
risks typically associated with the offenses enumerated in
connection with the "otherwise" clause of the career offender
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guideline. We previously have held that assault on a prison guard,
by its nature, presents a serious risk of injury to another.3 See
United States v. Gignac, 119 F.3d 67, 69 (1st Cir. 1997).
"'Prisons are inherently dangerous institutions,' where prison
guards are greatly outnumbered by inmates — many of whom have a
history of violence or of aggressive tendencies." United States v.
Johnson, 616 F.3d 85, 94 (2d Cir. 2010) (citation omitted) (quoting
Lewis v. Casey, 518 U.S. 343, 391 (1996)); accord Johnson v.
California, 543 U.S. 499, 515 (2005); Hudson v. Palmer, 468 U.S.
517, 526 (1984). "Guards and inmates co-exist in direct and
intimate contact. Tension between them is unremitting." Wolff v.
McDonnell, 418 U.S. 539, 562 (1974).
Moreover, a degree of risk analysis must take into
account the dangers that third parties are likely to create. See
Williams, 529 F.3d at 5-8. Assault and battery on a correctional
officer (even an unarmed correctional officer) is like throwing a
lit match into a tinder box: it inevitably "creates a risk that
fellow inmates will join in the disturbance, oppose it with force,
or simply use its occurrence to engage in other acts of violence."
3
To be sure, neither the Massachusetts statutes nor the case
law requires that a correctional officer work in a prison. But
"[i]t need not be the case that 'every conceivable factual offense
covered by a statute must necessarily present a serious potential
risk of injury before the offense can be deemed a violent felony.'"
Dancy, 640 F.3d at 470 (quoting James, 550 U.S. at 208). In the
ordinary course, correctional officers work at correctional
facilities, so the categorical approach directs our attention to
that environment.
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Johnson, 616 F.3d at 94. The setting is the key: "[t]he risk of
physical injury arises not only from this confrontation, but also
from the fact that prisons are like powder kegs, where even the
slightest disturbance can have explosive consequences." Id.
To say more would be to paint the lily. Common sense
dictates that ABCO, categorically speaking, presents a sufficiently
serious potential risk of injury to another to satisfy the degree
of risk requirement. It is, moreover, sufficiently similar in kind
to the offenses enumerated in connection with the "otherwise"
clause of the career offender guideline. Under the categorical
approach, no more is exigible.
We need go no further. For the reasons elucidated above,
we hold that the claim of sentencing error is without merit.
Affirmed.
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