United States v. Leahy

United States Court of Appeals
For the First Circuit

No. 05-1670

UNITED STATES OF AMERICA,

Appellee,

v.

JESSE LEAHY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.

Michael R. Schneider, with whom Salsberg & Schneider was on
brief, for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

January 19, 2007
 SELYA, Circuit Judge. This appeal calls upon us to

confront a question explicitly reserved in United States v. Diaz,

285 F.3d 92, 97 (1st Cir. 2002), concerning the allocation of the

burden of proof when a criminal defendant in a federal felon-in-

possession case attempts to exonerate himself by claiming that he

took possession of the firearm purely in self-defense.1 We hold

that there is a justification defense available in felon-in-

possession cases, which typically encompasses duress, necessity,

and self-defense. Relatedly, we hold that where, as here, proof of

the justification defense does not negate an element of the charged

crime, the burden of proof in connection with that defense rests

with the defendant. These holdings, coupled with our rejection of

a variety of other proffered assignments of error, lead us to

affirm the judgment below.

I. BACKGROUND

While the factual scenario portrayed at trial is littered

with testimonial conflicts and is at some points shrouded in

ambiguity, the facts relevant to this appeal are comparatively

straightforward.

On July 27, 2003, defendant-appellant Jesse Leahy, a

convicted felon, had an altercation with a group of teenagers near

1
The case at hand does not involve a claim of self-defense
via-à-vis a law enforcement officer. Such cases may present
special considerations and, thus, are beyond the scope of this
opinion.

-2-
his mother's home in Kezar Falls, Maine. According to Leahy, he

withdrew from the scene, but the youths followed him and attempted

forcibly to enter his mother's house. Ostensibly fearing the

maddened crowd, Leahy grabbed an Astra 9mm pistol that he knew his

mother kept in a kitchen drawer. He emerged from the residence

armed and confronted his tormentors.

During the ensuing imbroglio, Leahy admittedly fired the

weapon. The protagonists' versions of what happened differ

materially. Leahy asserts that he did no more than fire warning

shots into the ground to scare away attackers who were attempting

to inflict serious bodily injury on him. Other witnesses describe

Leahy as the aggressor and assert that he chased after the youths,

shot towards them, and pistol-whipped two of their number.

In all events, the youths fled. Once that occurred,

Leahy went back into the dwelling and hid the gun. Police soon

arrived at the scene. After a twelve-hour standoff, they entered

the premises and arrested Leahy. A search revealed not only the

hidden pistol but also a Marlin rifle stashed in a pantry closet.

Male DNA profiles found on the rifle were consistent with those

found on the pistol (although no DNA was specifically matched to

Leahy). In due season, a federal grand jury handed up an

indictment that charged Leahy with being a felon in possession of

a firearm. See 18 U.S.C. § 922(g)(1). The indictment referenced

both the pistol and the rifle.

-3-
 Leahy's criminal record included felony convictions for

assault and carrying a dangerous weapon. At trial, his then-

counsel did not press for a stipulation that Leahy was a previously

convicted felon (one exchange with the judge suggests that counsel

may not have realized that he could compel the government to

stipulate to this point). In the absence of a stipulation, the

prosecutor was able to introduce independent evidence of the prior

convictions.

Once both sides had rested, Leahy proffered a proposed

instruction on self-defense — one that placed the burden of proof

on the prosecution to disprove self-defense beyond a reasonable

doubt. The government rejoined that the facts did not warrant a

self-defense instruction. The district court took a middle path:

over Leahy's objection, it gave an instruction on "justification"

(defined so as to encompass self-defense), in which it told the

jury, in effect, that Leahy's possession of a firearm would be

justified (and, therefore, a guilty verdict would be unwarranted)

if (i) Leahy was under an unlawful and present threat of death or

serious bodily injury; (ii) he did not recklessly place himself in

a situation in which he would be forced to engage in criminal

conduct; (iii) he had no reasonable legal alternative but to engage

in that conduct; and (iv) there was a direct causal relationship

between his criminal conduct and the need to avoid the threatened

harm. This instruction treated justification as an affirmative

-4-
defense, see United States v. Willis, 38 F.3d 170, 179 (5th Cir.

1994), and placed the burden on Leahy to prove that affirmative

defense by a preponderance of the evidence.

Following deliberations, the jury found Leahy guilty. At

the disposition hearing, the district court, finding that in the

past Leahy had thrice been convicted of violent felonies,

classified him as an armed career criminal. See 18 U.S.C. § 924(e).

The court also determined that Leahy was subject to two separate

sentencing enhancements, one for possessing the firearm in

connection with an uncharged crime of violence and the other for

obstruction of justice arising out of perjurious trial testimony.

After making a series of other findings and computations, the court

imposed a 262-month incarcerative sentence. This timely appeal

followed.

II. BURDEN OF PROOF

Leahy's flagship claim is that, once he had made a

threshold showing of self-defense, the district court erred in

requiring him to prove self-defense rather than requiring the

government to negate his colorable claim. The proper allocation of

the burden of proof on such a defense, however denominated, is an

open question in this circuit with respect to felon-in-possession

cases. See Diaz, 285 F.3d at 97. The Constitution permits us to

answer this question either way; there is no constitutional

requirement that the burden of disproving self-defense reside with

-5-
the prosecution. See Patterson v. New York, 432 U.S. 197, 210-211

(1977) (upholding murder statute that placed burden of proving

affirmative defense on defendant when proof of that defense did not

negate an element of the offense). Because the question turns on

what is essentially a matter of statutory interpretation — what

Congress intended — we afford de novo review. See United States v.

Hartsock, 347 F.3d 1, 4 (1st Cir. 2003).

We introduce our analysis in case-specific terms. The

principal issue at trial was whether Leahy, as a convicted felon,

was legally justified in taking possession of the handgun. The

government argued that Leahy was not so justified because he was

the aggressor and, moreover, he was never under any realistic

threat of imminent harm. Leahy, in contrast, argued that his bona

fide fear of imminent harm justified him in taking possession of

the handgun and defensively using it to repel his attackers. Cf.

United States v. Holliday, 457 F.3d 121, 127 (1st Cir. 2006)

(explaining that a felon possessing a gun to "avoid the imminent

danger of his own death" is "the classic scenario in a self-defense

case"). This issue calls into question whether justification is a

defense to a felon-in-possession charge and if so, which party

bears the burden of proof.

The federal felon-in-possession statute itself, 18 U.S.C.

§ 922(g), makes no express provision for any affirmative defenses.

Thus, the logical starting place is the Supreme Court's recent

-6-
decision in Dixon v. United States, 126 S. Ct. 2437 (2006). There,

the Court assumed arguendo that duress would be a viable defense to

a section 922 charge2 and, on that assumption, ruled that the

defendant should bear the burden of proving duress. Id. at 2447.

The Court noted that the court of appeals had distilled the defense

into four elements. See id. at 2440 n.2. With one exception,

discussed infra note 8, those four elements were nearly identical

to the elements of "justification" delineated by the trial court in

this case.

Although the Dixon Court, for this purpose, used the term

"duress," that usage appears to have been a carry-over of the usage

employed below. See United States v. Dixon, 413 F.3d 520, 525 (5th

Cir. 2005) (using "duress" and "justification" interchangeably).

This imprecision is understandable. Since the federal felon-in-

possession statute does not explicitly admit of any affirmative

defenses, courts have been able only to infer the availability of

such defenses, though in appropriate circumstances they have not

hesitated to do so. See, e.g., United States v. Deleveaux, 205

F.3d 1292, 1297 & n.7 (11th Cir. 2000) (collecting cases from six

other circuits). We ourselves have intimated that, in appropriate

2
In Dixon, the charges were receiving a firearm while under
indictment, 18 U.S.C. § 922(n), and making false statements in
connection with the acquisition of a firearm, id. § 922(a). The
Court did not discuss these charges separately, and the decision
would appear to be fully applicable to violations of 18 U.S.C.
§ 922(g).

-7-
circumstances, we would recognize a justification defense to a

federal felon-in-possession charge. See United States v. Holt, 464

F.3d 101, 107 & n.4 (1st Cir. 2006); see also Holliday, 457 F.3d at

127 (assuming, arguendo, the availability of a justification

defense of self-defense in a § 922(g) case).

This inferential process, which requires courts to draw

on common law doctrines, has produced confusion over nomenclature.

See, e.g., United States v. Panter, 688 F.2d 268, 272 n.7 (5th Cir.

1982) (discussing whether "necessity" or "self-defense" is the

appropriate label for a defense to a federal felon-in-possession

charge). Many courts have sought to avoid this confusion by

treating a compendium of common law defenses — duress, necessity,

and self-defense — as interchangeable in this context (that is, in

a felon-in-possession case in which proof of the affirmative

defense will not negate any element of the charged crime) and

lumping them under the rubric of "justification."3 See, e.g.,

United States v. Beasley, 346 F.3d 930, 934-35 (9th Cir. 2003); see

also Deleveaux, 205 F.3d at 1295 n.2 (collecting cases). Our

canvass of the authorities elsewhere discloses that although some

courts have performed separate self-defense and necessity analyses,

see, e.g., United States v. Elder, 16 F.3d 733, 738-39 (7th Cir.

3
One court has crafted an affirmative defense of "innocent
possession," independent of any justification defense. See United
States v. Mason, 233 F.3d 619 (D.C. Cir. 2000). We have rejected
that taxonomy. See Holt, 464 F.3d at 107.

-8-
1994); see also Holliday, 457 F.3d at 127-28 & n.8 (discussing

self-defense and necessity separately, but taking no position on

whether those defenses could be viewed as interchangeable), no case

holds that the burden of proof will vary automatically depending on

whether duress, necessity, or self-defense is asserted.4 We

conclude, therefore, that ease in administration favors treating

these three defenses, in a federal felon-in-possession case, under

a single, unitary rubric: justification. This conclusion is

important because it strongly suggests that Dixon — which, as we

have said, placed the burden of proving duress on the defendant —

bars Leahy's path.

In hopes of distinguishing Dixon, Leahy beseeches us to

disambiguate self-defense from the broader category of

justification. He emphasizes that the Dixon Court looked at the

state of the law in 1968 (when Congress first conceived the federal

felon-in-possession statute)5 to help determine what allocation of

4
In a post-argument letter, see Fed. R. App. P. 28(j), Leahy
has directed us to a terse exchange between government counsel and
the Supreme Court during oral argument in Dixon. That exchange
raised the possibility of establishing different burden-of-proof
allocations for duress and self-defense. Transcript of Oral
Argument, Dixon v. United States, 126 S. Ct. 2437, 2006 WL 1194533,
at *28-30 (2006). In our view, the mere fact that government
counsel answered a hypothetical question in a manner advantageous
to the government's position in Dixon has no precedential value for
present purposes.
5
The origin of section 922 can be found in the Omnibus Crime
Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 922, 82
Stat. 197, 228. That statute included an early precursor to
section 922(g)(1). See id. at § 922(f), 82 Stat. at 231.

-9-
the burden of proof Congress most likely would have chosen had it

inserted a duress defense into the statutory text. See Dixon, 126

S. Ct. at 2445-47. He then asseverates, citing Mullaney v. Wilbur,

421 U.S. 684, 702 n.30 (1975), that the same methodology, if

applied in this case, would favor placing the burden of proof on

the prosecution because, in 1968, that was the majority rule in

self-defense cases.

Leahy's premise is incorrect. Although seven Justices

joined the opinion of the Dixon Court, Justice Kennedy wrote a

concurring opinion that distanced him from the date-centric

methodology employed in that opinion and wrote that, as a general

matter, "we can assume that Congress would not want to foreclose

the courts from consulting . . . newer sources and considering

innovative arguments." Dixon, 126 S. Ct. at 2448 (Kennedy, J.,

concurring). Justice Alito, joined by Justice Scalia, also wrote

a separate concurrence rejecting reliance on the date-centric

methodology and stressing the value of looking to the state of the

law "when Congress began enacting federal criminal statues." Id.

at 2449 (Alito, J., concurring). Finally, Justice Breyer, joined

by Justice Souter, wrote a dissent in which he argued that

determination of the appropriate burden of proof allocation was a

question of federal common law. Id. at 2450 (Breyer, J.,

dissenting) (explicitly declining to follow the date-centric

approach). Thus, the most that we can glean from the several

-10-
opinions in Dixon is that the state of the law in 1968 is one

possible source of enlightenment as to how Congress would have

wanted to allocate the burden of proof had it explicitly created a

justification defense to a felon-in-possession charge; other

possible sources of enlightenment (such as the nature of the

offense, the evolution of the defense and its accouterments when

the Constitution was ratified, and generic policy considerations)

must also be factored into the mix.

It can also be argued that, as an historical matter,

self-defense circa 1968 was generally limited to assaultive crimes.

See 2 Wayne R. LaFave, Substantive Criminal Law § 10.4(a), at 143

(2d ed. 2003); George E. Dix & M. Michael Sharlot, Criminal Law:

Cases and Materials 776 (5th ed. 2002).6 This strong correlation

between self-defense and assaultive crimes is evident from Leahy's

citation to Mullaney. See Mullaney, 421 U.S. at 702 (indicating

that the discussion contained therein is intrinsically tied to

cases involving the "commission of [a] homicide"). We think a

powerful argument can be made that, had Congress meant to weave the

common law of self-defense into the fabric of a non-assaultive

offense like that created by the federal felon-in-possession

6
While some modern innovation has expanded the breadth of
self-defense, see, e.g., Boget v. State, 74 S.W.3d 23, 29-30 (Tex.
Crim. App. 2002); see also Holliday, 457 F.3d at 127 (noting, in
the present tense, that "self-defense is not limited to 'assaultive
crimes'"), this relatively recent development is irrelevant to
Leahy's argument about what the Congress that enacted section
922(g) in 1968 intended.

-11-
statute, it would have represented a radical departure from the

mainstream of jurisprudential thought circa 1968 and, thus, would

have warranted some explicit statement. To impute such an

intention to Congress on the basis of the Dixon methodology alone

would, therefore, make very little sense.

We need not dwell on the distinction between assaultive

and non-assaultive crimes, for there is a more fundamental flaw in

Leahy's thesis. The crimes historically associated with self-

defense (homicide, for example) all carry substantial mens rea

requirements. The federal felon-in-possession statute requires

proof that the defendant knowingly possessed a firearm.7 See

United States v. Carpenter, 403 F.3d 9, 10 (1st Cir. 2005). Beyond

that, however, 18 U.S.C. § 922(g) is a strict liability statute,

which contains no specific mens rea element at all. See Dixon, 126

S. Ct. at 2447; Diaz, 285 F.3d at 97. Literally, the felon-in-

possession statute encompasses both the felon who intentionally

arms himself to rob a bank and the felon who frustrates the robbery

by snatching the gun out of the robber's hand. This is a salient

distinction: while an individual who kills another in self-defense

lacks the malice required to support, say, a conviction for first-

degree murder, a felon who knowingly takes possession of a firearm

thereby satisfies every statutory element of the felon-in-

7
The justification defense asserted by Leahy in this case does
not go to knowledge; Leahy readily concedes that he knowingly
seized the handgun.

-12-
possession offense regardless of whether he was motivated by

concern for his own safety.

The absence of a mens rea requirement has obvious

implications. In a felon-in-possession case (unlike in, say, an

assaultive crime), evidence of facts concerning self-defense

neither contradicts nor tends to disprove any element of the

charged crime. Cf. Dixon, 126 S. Ct. at 2444 (reaching the same

conclusion as to duress vis-à-vis similar section 922 violations).

This means that disproving self-defense beyond a reasonable doubt

is not inherent in the prosecution's burden of proving every

element of the offense charged. See generally In re Winship, 397

U.S. 358, 364 (1970). So viewed, there is no good reason to

eschew, in the felon-in-possession context, the burden allocation

that affirmative defenses normally carry.

Most of the other courts that have considered this

question have come to the same conclusion. Four of our sister

circuits have squarely confronted the issue of allocating the

burden of proof on a justification defense other than duress to

federal felon-in-possession charges, where proof of the defense

would not negate any of the elements of the charged crime. Three of

the four have assigned the burden of proving such a defense to the

defendant. See Beasley, 346 F.3d at 935; United States v. Dodd,

225 F.3d 340, 350 (3d Cir. 2000); Deleveaux, 205 F.3d at 1301.

Although one respected court of appeals has held to the contrary,

-13-
see United States v. Talbott, 78 F.3d 1183, 1186 (7th Cir. 1996)

(per curiam), we find the reasoning of Beasley, Dodd, and Deleveaux

more persuasive.

Leahy argues that pragmatic considerations counsel in

favor of assigning the burden of proof to the government. We think

that these considerations tilt the other way. When self-defense is

an issue in a felon-in-possession case, the defendant is likely to

have greater access to the relevant facts than the government. See

Deleveaux, 205 F.3d at 1300. While there always will be a witness

when a defendant claims self-defense — the source of the alleged

threat — that witness may or may not be available and, if

available, may or may not be cooperative. For that reason, the

defendant, himself a witness to the threat, is better positioned

than the government to depict the circumstances under which he came

into possession of the gun.

To sum up, we confirm the suggestion previously made in

Holt and Holliday, and add our voice to the weight of authority by

holding that, in some circumstances, justification — a term that we

define to include, inter alia, self-defense — can comprise an

affirmative defense to a federal felon-in-possession charge.

Furthermore, we think it highly unlikely that Congress, in enacting

the federal felon-in-possession law, intended to require the

government to prove beyond a reasonable doubt the existence of a

fact that it did not specify as an element of the offense.

-14-
Consequently, we hold that in a federal felon-in-possession

prosecution, there is no sound basis for treating that defense

differently from other justification defenses. It follows that a

defendant who asserts self-defense in such a case must carry the

devoir of persuasion on that defense by a preponderance of the

evidence.

In that regard, we adopt the four-part framework for

justification discussed by the Supreme Court in Dixon, 126 S. Ct.

at 2440 n.2. That framework has been embraced by a number of other

courts. See Deleveaux, 205 F.3d at 1297 (collecting cases). Here,

the lower court used a version of that four-part framework and

(apart from questioning the allocation of the burden of proof)

Leahy has not challenged either the wording of the pertinent jury

instruction or the sufficiency of the evidence underlying the

jury's apparent rejection of justification as a defense.8

It is evident from what we have said that Leahy's

principal claim of error fails. We think it is prudent, however,

to add two caveats. First, this holding is limited to

8
As to the second element of the framework, the court charged
the jury that Leahy had to prove that he did not "recklessly" place
himself in a situation in which he would be forced to engage in
criminal conduct. The authorities are divided on the question of
whether the second element extends to negligence as well as
recklessness. Compare, e.g., Dixon, 413 F.3d at 523 (including
negligence along with recklessness), with, e.g., Beasley, 346 F.3d
at 933 n.2 (limiting the second element to reckless conduct). The
case at hand does not require us to take sides in this debate.

-15-
justification defenses that do not go to the elements of the felon-

in-possession offense. We leave open the possibility that a

defense within the rubric of justification might negate an element

of the felon-in-possession offense. In that event, the burden of

disproving the defense would rest on the prosecution. Second,

although we believe it is useful to speak of a single justification

defense, we caution that different factual scenarios may require

variations in the phrasing of the four-factor test. For example,

the first factor, which requires that the defendant be under a

present and unlawful threat of death or serious bodily injury, will

require modification in cases in which the defendant allegedly acts

in defense of a third party. Those nuances remain to be developed

in future cases.

III. UNANIMITY

The indictment in this case contained only a single

count. That count mentioned two guns — the pistol and the rifle —

and the government adduced evidence at trial about both weapons.

The jury returned a general verdict. Based on this collocation of

circumstances, Leahy suggests that he may have been convicted

because some jurors believed that he possessed the rifle while

others believed that he possessed the pistol but did not act in

self-defense. To safeguard against this possibility, his thesis

runs, the district court should have instructed the jury that

-16-
unanimity as to the identity of the weapon unlawfully possessed was

required.

Leahy's concern for unanimity is of recent vintage: he

did not request such an instruction below. The issue is, therefore,

forfeited. See, e.g., United States v. Gomez, 255 F.3d 31, 37 (1st

Cir. 2001). As a forfeited issue, it may be reviewed on appeal

only for plain error. See id.

The plain error hurdle is high. United States v.

Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989). To surmount it, an

objector must make four showings: "(1) that an error occurred (2)

which was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Leahy

cannot clear this four-tiered hurdle.

It is settled law that "Congress did not intend the

possession of a particular firearm to be an element of a §

922(g)(1) violation." United States v. Verrecchia, 196 F.3d 294,

301 (1st Cir. 1999). Consequently, there is no need for unanimity

within the relevant unit of prosecution, that is, with respect to

weapons possessed "in one place at one time." Id. at 298.

Were this objection preserved, we would be forced to

delve into the geography of the relevant unit of prosecution and

determine whether the pistol (taken from a kitchen drawer one

-17-
evening) and the rifle (stowed in the pantry but perhaps handled at

some indeterminate point) were sufficiently related in "time" and

"place". But the objection was not preserved, and Verrecchia is

tenebrous as to the temporal and spatial contours of the "relevant

unit of prosecution." That combination defeats a claim that an

obvious error occurred. Hence, Leahy cannot satisfy the strictures

of plain error review.

IV. INEFFECTIVE ASSISTANCE

Leahy next complains that his trial counsel did not offer

to stipulate to the fact the he was a previously convicted felon —

an omission that opened the door for the government to introduce

evidence of the unattractive particulars of Leahy's prior misdeeds.

Since the government would have had no choice but to enter into

such a stipulation upon a timely request, see Old Chief v. United

States, 519 U.S. 172, 174 (1997), this strategy does seem puzzling.

The problem, however, is that this claim is newly advanced. "We

have held with a regularity bordering on the monotonous that fact-

specific claims of ineffective assistance cannot make their debut

on direct review of criminal convictions, but, rather, must

originally be presented to, and acted upon by, the trial court."

United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).

To be sure, there is a narrow exception to this rule for

cases in which the record is adequately developed to permit

reasoned consideration of the claim. See, e.g., United States v.

-18-
Natanel, 938 F.2d 302, 309 (1st Cir. 1991). Here, however, that

exception does not pertain. The record below contains nothing

approaching an adequate elaboration of why counsel adopted the

course that he followed (Leahy suggests that his lawyer did not

know of the Old Chief decision, but that fact is not pellucid from

the record), nor does it provide the district court's first-hand

insights as to what (if any) quantum of prejudice might have

attended this strategy. Given the need for further factfinding, we

decline Leahy's invitation to address the ineffective assistance of

counsel claim for the first time on direct appeal. Instead, we

remit him, should he desire to pursue the matter, to his remedies

under 28 U.S.C. § 2255. We intimate no view of the likely outcome

of such a proceeding.

V. SENTENCING

As a tail-end matter, Leahy raises three objections to

his sentence. We address them sequentially.

A. Armed Career Criminal.

As said, the district court sentenced Leahy under the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The court

adopted this taxonomy after having found that Leahy's record

included the necessary predicate: three prior convictions for

violent felonies. See id. As a result of this determination,

Leahy faced a fifteen-year mandatory minimum sentence, see id., and

-19-
automatically incurred elevated criminal history and offense level

placements, see USSG §4B1.4.

Pertinently, ACCA defines a "violent felony" as a crime

punishable by "imprisonment for a term exceeding one year" that

"involves conduct that presents a serious potential risk of

physical injury to another." 18 U.S.C. § 924(e)(2)(B). Three such

felony convictions are required to trigger the statute, and Leahy

asserts that one of his three prior convictions — namely, a

Massachusetts conviction for indecent assault and battery, see

Mass. Gen. Laws ch. 265, § 13H9 — does not qualify and, therefore,

ACCA does not apply.

The determination of whether a particular crime is a

violent felony is a question of law and, thus, engenders de novo

review. See United States v. Bishop, 453 F.3d 30, 32 (1st Cir.

2006). The question here is whether Leahy's indecent assault and

battery conviction is for a crime that "presents a serious

potential risk of physical injury to another." We agree with the

sentencing court that the conviction meets this definition.

9
The provision reads in relevant part:

Whoever commits an indecent assault and
battery on a person who has attained age
fourteen shall be punished by imprisonment in
the state prison for not more than five years,
or by imprisonment for not more than two and
one-half years in a jail or house of
correction.

-20-
 The methodology for deducing whether a given offense

constitutes a violent felony derives from Taylor v. United States,

495 U.S. 575 (1990). We take a categorical approach, looking to

the fact of conviction and the statutory definition of the offense.

Id. at 602. If a statute encompasses acts that could constitute

both violent and non-violent felonies, we may also look to certain

materials particular to a given case (such as the charging document

and jury instructions). See id.; see also Shepard v. United

States, 544 U.S. 13, 26 (2005).

The district court concluded that, under this approach,

all section 13H convictions were convictions for violent felonies.

In reaching this conclusion, the court relied heavily on Sutherland

v. Reno, 228 F.3d 171, 177 (2d Cir. 2000), in which the Second

Circuit found, in an immigration proceeding, that a conviction

under section 13H was a conviction for a "crime of violence." For

the Sutherland court, the pivotal fact was that "lack of consent is

. . . a requisite element of a § 13H violation." Id. at 176

(citing Maghsoudi v. INS, 181 F.3d 8, 15 (1st Cir. 1999)). Since

"the crime involves a non-consensual act upon another person, there

is a substantial risk that physical force may be used in the course

of committing the offense." Id. (quoting United States v. Reyes-

Castro, 13 F.3d 377, 379 (10th Cir. 1993)).

Leahy attempts to distinguish Sutherland by noting that

the opinion deals with the definition of "crime of violence" found

-21-
in 8 U.S.C. § 16(b). Building on that foundation, he points out

that while ACCA's definition of "violent felony" has been deemed

substantively identical to the definition of "crime of violence"

used in the federal sentencing guidelines, see United States v.

Jackson, 409 F.3d 479, 480 n.1 (1st Cir. 2005), both the Supreme

Court and this court have distinguished section 16(b) from the

pertinent guidelines provision, USSG §4B1.2, on the ground that the

former is concerned with a risk of force whereas the latter is

concerned with risk of injury. See Leocal v. Ashcroft, 543 U.S. 1,

10 n.7 (2004); Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir. 2006).

Leahy deploys the transitive property to reach the conclusion that

ACCA must also be distinguishable from section 16(b). He then

argues that while indecent assault and battery may entail a

substantial risk of force, offensive touching does not entail a

serious risk of physical injury.

Leahy's argument does not withstand scrutiny. To begin,

both Leocal and Aguiar treat section 4B1.2 as reaching conduct

beyond the scope of section 16(b). See Leocal, 543 U.S. at 10 n.7;

Aguiar, 438 F.3d at 88. Neither decision in any way suggests that

the reverse is true. Moreover, even if one can conceive of a risk

of force bereft of a corresponding risk of injury, the logic of

Sutherland still would compel the result reached by the district

court. After all, just as there is "a substantial risk that force

may be used in order to overcome the victim's lack of consent,"

-22-
Sutherland, 228 F.3d at 176, so too is there a substantial risk of

physical injury from the unwanted touching.10

This conclusion is buttressed by our decision in United

States v. McVicar, 907 F.2d 1 (1st Cir. 1990). There, we held that

a statute encompassing the crime of pickpocketing satisfied section

4B1.2 because "[t]aking property directly from a person seems to us

to run a 'substantial' or 'serious' risk that 'physical force' or

'physical injury' will follow." Id. at 2. If the risk of injury

presented by pickpocketing — a crime in which the perpetrator's

goal is to leave his victim unaware of the contact — satisfies

section 4B1.2 (and, by extension, ACCA), it seems inescapable that

the risk of physical injury posed by a crime in which the touching

is the end, not merely the means, would likewise entail the

necessary degree of risk.

Leahy makes much of the fact that Massachusetts does not

include indecent assault and battery in its own list of "sexually

violent offenses." See Mass. Gen. Laws ch. 6, § 178C. That fact

is of little moment. "Because a state's classification of a crime

generally reflects different policy considerations than the federal

classification, it is simply not relevant to the determination of

10
Both sides debate the significance to this issue of our
decision in United States v. Sherwood, 156 F.3d 219 (1st Cir.
1998). However, that case involved a child molestation statute and
the opinion is largely focused on the special vulnerability of
young children. See id. at 221-22. With respect to the case at
hand, we think that the logic used in Sutherland hits closer to
home.

-23-
whether a crime is a 'violent felony,' which, under federal law, is

based on an assessment of the risk of physical injury associated

with the typical conduct underlying that crime." United States v.

Sacko, 247 F.3d 21, 25 (1st Cir. 2001).

The short of it is that the lower court correctly

sentenced Leahy as an armed career criminal.

B. Judicial Factfinding.

When a defendant is found to be an armed career criminal,

USSG §4B1.4 applies to his case. By reason of that paradigm, the

defendant faces increases in both his offense level and his

criminal history category if he is found to have used or possessed

the firearm in connection with a crime of violence (whether charged

or uncharged). See Holliday, 457 F.3d at 130. Applying this

guideline, the district court found, under a preponderance of the

evidence standard, that Leahy, during his interactions with the

gaggle of teenagers on July 27, 2003, had committed the uncharged

state crimes of aggravated assault and reckless conduct. See Me.

Rev. Stat. Ann. tit. 17-A, §§ 208, 211. The court upwardly

adjusted Leahy's offense level and criminal history category

accordingly.

Leahy argues that, under the Sixth Amendment, he was

entitled to have these determinations made by a jury beyond a

reasonable doubt. He frankly acknowledges that this argument

contradicts the combined holding of United States v. Watts, 519

-24-
U.S. 148, 157 (1997) (per curiam), and Almendarez-Torres v. United

States, 523 U.S. 224, 226-27 (1998). He nonetheless posits that

they have not survived the decision in United States v. Booker, 543

U.S. 220 (2005).

This argument need not detain us. We have recently held

in precisely analogous circumstances (involving a USSG §4B1.4

enhancement predicated upon an uncharged crime of violence) that

"even after Booker, [there is no need that] the facts underlying

the enhancement be found by a jury. Under the advisory guidelines

regime, the district court can use the preponderance of the

evidence standard to determine whether an enhancement applies."

Holliday, 457 at 130. This holding obliterates Leahy's objection.

C. Obstruction of Justice.

Finally, Leahy objects to a two-level sentencing

enhancement for obstruction of justice. See USSG §3C1.1. In his

view, the enhancement rests on shaky ground because the sentencing

court did not make findings that identified perjurious statements

with particularity. See United States v. Dunnigan, 507 U.S. 87, 98

(1993).

Our review of the record indicates that the district

court in fact identified some aspects of Leahy's testimony that it

found incredible. Still, it is unnecessary to probe that point;

the short, dispositive rejoinder to Leahy's plaint is that any

error was harmless. We explain briefly.

-25-
 On the basis of its determination that Leahy had

obstructed justice, the district court adjusted his offense level

from 28 to 30. This adjustment became irrelevant, however, when

the court found Leahy to have been an armed career criminal who

possessed a firearm in connection with an uncharged crime of

violence. See supra Parts V(A)-(B). That finding triggered an

overriding offense level of 34, which came into play without regard

to other enhancements. See USSG §4B1.4(b). The superimposition of

this enhancement rendered the putative enhancement for obstruction

of justice moot. See United States v. Cruz, 156 F.3d 22, 29-30

(1st Cir. 1998).

VI. CONCLUSION

We need go no further. For aught that appears, Leahy was

fairly tried, justly convicted, and lawfully sentenced.

Consequently, we uphold the conviction and sentence, without

prejudice, however, to Leahy's right, should he so elect, to revive

his ineffective assistance of counsel claim on collateral review.

Affirmed.

-26-