United States Court of Appeals
For the First Circuit
No. 08-2273
UNITED STATES OF AMERICA,
Appellee,
v.
CURTIS HOLLOWAY,
TRUE NAME: CURTIS KAREEM HOLLOWAY,
A/K/A CURTIS H. HOLLOWAY, A/K/A CURTIS K. HOLLOWAY,
Defendant, Appellant.
No. 09-1232
UNITED STATES OF AMERICA,
Appellee,
v.
RICARDO CALVO,JR.,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Syrie D. Fried, Federal Defender Office, for Curtis Holloway.
Alan Jay Black for Ricardo Calvo, Jr.
Mark T. Quinlivan, Assistant United States Attorney with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
January 21, 2011
HOWARD, Circuit Judge. Under the Armed Career Criminal
Act ("ACCA"), codified at 18 U.S.C. § 924(e), a person convicted of
being a felon in possession of a firearm who also has three
previous convictions for a "violent felony" is sentenced to a
minimum of fifteen years in prison. The two appeals before us
raise a recurring issue: whether a federal court may conclude that
a conviction under Massachusetts's simple assault and battery
statute qualifies as a violent felony under the ACCA, §
924(e)(2)(B)(i), merely because the state indictment used the
boilerplate language "did assault and beat."1
Our cases hold that Massachusetts's simple assault and
battery statute covers multiple offenses; that at least one of
these offenses, "harmful battery," qualifies as a violent felony
under the ACCA; and that charging language in a state court
indictment alleging that the defendant "did assault and beat" his
victim suffices to identify the harmful battery offense.
This last conclusion -- first reached by us in United
States v. Mangos, 134 F.3d 460, 464 (1st Cir. 1998) -- has been
1
In other cases, we have considered a similar question: the
circumstances under which a Massachusetts simple assault and
battery conviction will qualify as a predicate conviction for a
"crime of violence" under the career offender provision of the U.S.
Sentencing Guidelines. United States v. Estevez, 419 F.3d 77, 82
(1st Cir. 2005); United States v. Santos, 363 F.3d 19, 22 (1st Cir.
2004); United States v. Mangos, 134 F.3d 460, 464 (1st Cir. 1998).
The terms "crime of violence" and "violent felony" are nearly
identical in meaning. United States v. Willings, 588 F.3d 56, 58
n.2 (1st Cir. 2009). Because of this, "decisions construing one
term inform the construction of the other." Id.
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challenged often, on the basis that the "did assault and beat"
charging language is boilerplate and thus fails to identify the
harmful battery offense. Despite this criticism, we have
considered ourselves bound by Mangos and have reaffirmed its
holding on multiple occasions. United States v. Rivera, 562 F.3d
1, 2 (1st Cir. 2009); United States v. Holloway, 499 F.3d 114, 118
(1st Cir. 2007); United States v. Estevez, 419 F.3d 77, 82 (1st
Cir. 2005); United States v. Santos, 363 F.3d 19, 23 (1st Cir.
2004)."
The appellants in the present cases, Curtis Holloway and
Richard Calvo, urge us to revisit and abandon the Mangos rule, in
light of the Supreme Court's decision in Johnson v. United States,
130 S. Ct. 1265 (2010), which held that a Florida battery offense
did not qualify as a violent felony under the ACCA. Although
Johnson is not directly on point we nevertheless conclude that it
casts sufficient doubt on the reasoning set forth in Mangos to
require us to take a fresh look at the issue. After doing so, we
agree that Mangos's rule that the boilerplate charging language of
assault and battery alone establishes a violent felony is no longer
good law.2 It follows that further analysis is ordinarily required
2
Following the procedure described in cases such as Crowe v.
Bolduc, 365 F.3d 86, 89 n.1 (1st Cir. 2004) and United States v.
Dowdell, 595 F.3d 50, 62 n.8 (1st Cir. 2010), the panel opinion in
this case was circulated to all active judges of the court, all of
whom posed no objection to our treatment of Mangos and its progeny.
We caution that the use of this informal procedure does not convert
this opinion into an opinion en banc, nor does it preclude a
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in the district courts before the conclusion can be reached as to
whether the offense at issue qualifies as an ACCA felony. That
further analysis would normally involve (a) looking to the
documents permitted under Shepard v. United States, 544 U.S. 13
(2005) and (b) consideration of whether the conduct described in
those documents falls within the force clause or the residual
clause of the ACCA.
The question of the appropriate next steps in these two
cases is more complicated because the district courts in the
instant cases relied on our previous pronouncements about the "did
assault and beat" charging language when sentencing the appellants
under the ACCA force clause. We vacate both sentences and remand
for further consideration as noted, and for resentencing.
I. Facts
A. Holloway
In 2002, a federal grand jury in the District of
Massachusetts returned a one-count indictment charging Holloway
with being a felon in possession of ammunition in violation of 18
U.S.C. § 922(g). In 2005, Holloway entered a conditional guilty
plea.
suggestion of rehearing en banc on any issue in the case, whether
or not related to the panel's treatment of Mangos.
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1. First sentencing and appeal
At sentencing, the government argued that the district
court should sentence Holloway to a mandatory fifteen–year prison
term under the ACCA on the basis of his three prior Massachusetts
convictions for assault and battery. The government noted that
each of Holloway's convictions was accompanied by an indictment
alleging that he "did assault and beat" the victim. Citing Mangos
and its progeny, the government argued that this charging language
sufficed to identify the offense of harmful battery, which is a
violent felony under the ACCA. Holloway claimed that the "did
assault and beat" charging language was not peculiar to harmful
battery; rather, it was used to charge all types of assault and
battery, including a type that would not qualify as a predicate
offense under the ACCA. Because it was unclear which battery
offense he had been convicted of, Holloway's argument continued,
the district court could not sentence him as an armed career
criminal. The district court accepted Holloway's argument and
sentenced him to time served.
The government appealed Holloway's sentence, arguing that
the sentencing decision was erroneous in light of Mangos. We
agreed, noting that "Holloway's contention is foreclosed by our
precedent which holds that a Massachusetts charging document that
states the defendant 'assault[ed] and beat' the victim is
sufficient to establish the conviction was for a violent battery."
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United States v. Holloway, 499 F.3d 114, 118 (1st Cir. 2007). We
vacated Holloway's sentence and remanded for resentencing. Id. at
118–119.
2. Second sentencing and current appeal
On remand, Holloway again argued that the district court
could not rely on his Massachusetts convictions for assault and
battery to sentence him under the ACCA. The district court, as it
was bound to do, rejected Holloway's argument and sentenced him to
the mandatory fifteen–year prison term, to be followed by three
years of supervised release. Holloway now appeals this sentence,
claiming that Johnson requires reconsideration of the charging
language rule.
B. Calvo
Calvo's sentencing followed a similar path. In 2006, a
federal grand jury in the District of Massachusetts returned a
superseding indictment charging Calvo with, among other things,
being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g). Calvo pled guilty to this
particular count.
At sentencing, the government argued that the district
court should sentence Calvo to a mandatory fifteen–year prison term
under the ACCA because he had three prior Massachusetts convictions
for assault and battery. As at Holloway's sentencing, the
government noted that Calvo's assault and battery convictions were
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accompanied by the "did assault and beat" charging language that
identified harmful battery as the offenses of conviction. Like
Holloway, Calvo argued that the charging language was mere
statutory boilerplate. The district court rejected Calvo's
argument, noting that it was "foreclosed by the case law." It
sentenced Calvo to the mandatory fifteen–year prison term, to be
followed by five years of supervised release. Calvo appeals,
advancing, in all material respects, the same argument as that
advanced by Holloway.
II. Discussion
A. Legal backdrop
"We review de novo the legal conclusion as to whether a
prior conviction qualifies as a 'violent felony.'" United States
v. Sanchez–Ramirez, 570 F.3d 75, 81 (1st Cir. 2009).
Under the ACCA, a prior offense will qualify as a violent
felony if it is both punishable by imprisonment for a term
exceeding one year and either "(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). Clause (i) is sometimes referred to as
the "force clause." See e.g., United States v. Davis, 487 F.3d
282, 285 (5th Cir. 2007). The portion of clause (ii) following the
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enumerated offenses is known as the "residual clause."
Sanchez–Ramirez, 570 F.3d at 82.
When determining whether a defendant's prior offense
qualifies as a violent felony under the ACCA, the sentencing court
in the first instance, and we on de novo review, take a categorical
approach. Taylor v. United States, 495 U.S. 575, 600 (1990).
Under this approach, we consider whether the offense of conviction,
as legally defined, qualifies as a violent felony under either of
the ACCA's two clauses. Id. This approach is deemed categorical
because we may consider only the offense's legal definition,
forgoing any inquiry into how the defendant may have committed the
offense. Begay v. United States, 553 U.S. 137, 141 (2008); Taylor,
495 U.S. at 600.
"In implementing this [categorical] approach, the first
step is to identify the offense of conviction." United States v.
Giggey, 589 F.3d 38, 41 (1st Cir. 2009). This can prove
challenging when a defendant is convicted under a statute that
covers multiple offenses. Id. In such a case, a court may look to
a restricted set of documents (e.g., indictment, plea colloquy,
jury instructions) to ascertain which of the multiple offenses
served as the offense of conviction. Shepard, 544 U.S. at 26;
Giggey, 589 F.3d at 41. If those documents do not identify the
offense of conviction, however, the conviction may only serve as a
predicate offense if each of the possible offenses of conviction
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would qualify as a violent felony. See Shepard, 544 U.S. at 26.
Under these conditions, if at least one of the possible offenses of
conviction would not qualify as a violent felony, the conviction is
unusable for ACCA purposes. In such a case, it is impossible to
tell whether the defendant was convicted of a violent or non-
violent offense.
The statute at issue here, Massachusetts's simple assault
and battery statute3, covers multiple offenses. Specifically, the
statute encompasses three types of battery: (1) harmful battery;
(2) offensive battery; and (3) reckless battery.4 Commonwealth v.
Boyd, 897 N.E.2d 71, 76 (Mass. App. Ct. 2008). So far, we have
held only that the first of these three types, harmful battery,
qualifies as a violent felony under the ACCA. See, e.g., Rivera,
562 F.3d at 1.
Because the assault and battery statute covers multiple
offenses, a sentencing court's first task is to identify which
battery offense served as the offense of conviction. Mangos
involved this aspect of the categorical approach. In Mangos, the
district court relied on the defendant's prior conviction under
Massachusetts's assault and battery statute when sentencing him as
a career offender. 134 F.3d at 463. Mangos appealed his sentence,
3
Mass. Gen. Laws ch. 265, § 13A.
4
These offenses are not defined in the statute. Instead,
Massachusetts common law provides their definitions. Mangos, 134
F.3d at 463.
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arguing that, because it was unclear which battery offense he had
been convicted of, his conviction could not serve as a predicate
offense. Id. We rejected the premise of his argument, explaining
that the indictment in his case, which charged that he "did assault
and beat" his victim, sufficed to identify the offense of
conviction as "harmful battery," a crime of violence. Id. at 464.
In reaching this conclusion, "we interpreted the charging language
in the most reasonable sense--that 'the assault amounted to a
beating' of the victim." Holloway, 499 F.3d at 118. After Mangos,
the rule in this circuit was straightforward: "did assault and
beat" charging language suffices to identify the harmful brand of
battery for purposes of sentencing under either the ACCA or the
career offender provision of the U.S. Sentencing Guidelines.
Rivera, 562 F.3d at 2; Holloway, 499 F.3d at 118; Estevez, 419 F.3d
at 82; Santos, 363 F.3d at 23.
B. Issues on appeal
The appellants argue that our prior interpretation of the
Massachusetts charging language has been undermined by Johnson. In
their view, Johnson requires that we must consider how the charging
language is interpreted under state law rather than impose our own
construction upon it. We agree.
The government's response is two-fold. First, it argues
that the charging language argument raised by the appellants is
foreclosed; Holloway's under both the "law of the case" and "law of
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the circuit" doctrines and Calvo's under the law of the circuit
doctrine. Although the government concedes there are exceptions to
these doctrines, it maintains that the Court's decision in Johnson
does not implicate them.
The government argues in the alternative that, even if
Johnson does implicate an exception to these doctrines and requires
us to abandon our charging language rule, we would still have to
uphold the sentences of the appellants. The government asserts
that all three types of Massachusetts battery offenses qualify as
violent felonies under the ACCA, obviating any need to rely on the
charging language. We consider the arguments in turn.
1. Law of the case and law of the circuit
Under the law of the case doctrine, "when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case." Arizona v.
California, 460 U.S. 605, 618 (1983). The doctrine has two
branches. United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004).
One of these branches provides "that a legal decision made at one
stage of a criminal or civil proceeding should remain the law of
that case throughout the litigation." Id. Holloway's appeal
implicates this branch, which "binds, for example, a successor
appellate panel in a second appeal in the same case." Id. The law
of the circuit doctrine, implicated by both appeals, is a close
cousin of the law of the case doctrine. It dictates that "[i]n a
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multi-panel circuit . . . newly constituted panels ordinarily are
constrained by prior panel decisions directly (or even closely) on
point." United States v. Guzman, 419 F.3d 27, 31 (1st Cir. 2005).
There are, of course, exceptions to these doctrines. The
most well-known exception, common to both doctrines, applies when
"[a]n existing panel decision [is] undermined by controlling
authority, subsequently announced, such as an opinion of the
Supreme Court." Igartúa v. United States, No. 09-2186, 2010 WL
4751781 at *10 (1st Cir. Nov. 24, 2010) (quoting United States v.
Rodriguez Pacheco, 475 F.3d 434, 441 (1st Cir. 2007)). See Ellis
v. United States, 313 F.3d 636, 648 (1st Cir. 2002) (law of the
case); Eulitt ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d 344,
349 (1st Cir. 2004) (law of the circuit). A Supreme Court opinion
need not be directly on point to undermine one of our opinions. "A
[Supreme Court] holding . . . can extend through its logic beyond
the specific facts of its case." Los Angeles County v. Humphries,
No. 09-350, 2010 WL 4823681 at *7 (U.S. Nov. 30, 2010). We need
not describe other exceptions to these rules because we conclude an
intervening Supreme Court decision has cast into doubt the logic of
the Mangos per se equivalence rule.
In Johnson, the Supreme Court considered whether the
Florida felony offense of battery by "[a]ctually and intentionally
touch[ing]" another person qualifies as a violent felony under the
ACCA's force clause. 130 S. Ct. at 1268. The Supreme Court
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ultimately held that it did not. Id. at 1271. The Court explained
that the ACCA's force clause applies only where the offense at
issue has as an element the use of "violent force -- that is, force
capable of causing physical pain or injury to another person." Id.
Because the Florida battery offense at issue lacked such an element
-- it could be "satisfied by any intentional physical contact, 'no
matter how slight'" -- the Court held that it failed to qualify as
a violent felony under the force clause. Id. at 1269–70, 1271.
Johnson, to be clear, does not undermine our first
holding in Mangos that harmful battery under Massachusetts law --
a battery offense which has as an element the use of violent force5
-- qualifies as a violent felony under the ACCA. It is also true
that the appeals here are concerned only with whether particular
charging language in a Massachusetts state court indictment
suffices to identify the harmful type of battery, an issue Johnson
did not address. A close inspection of the Supreme Court's
analysis in Johnson, however, reveals a significant tension between
the reasoning of Johnson and the reasoning in Mangos.
Johnson makes clear that in considering whether an
offense should be considered a violent felony under the ACCA,
federal courts must utilize state court constructions of state law.
5
To convict for harmful battery under Massachusetts law, the
prosecution must prove that the defendant intentionally touched his
victim with "such violence that bodily harm is likely to result."
Commonwealth v. Burke, 457 N.E.2d 622, 624 (Mass. 1983);
Commonwealth v. Boyd, 897 N.E.2d 71, 76 (Mass. App. Ct. 2008).
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To define whether an offense is a violent felony under the ACCA,
the Supreme Court has always begun with what it has characterized
as the "categorical approach," Johnson, 130 S. Ct. at 1273, which
asks "whether the elements of the offense are of the type that
would justify its inclusion within the [force or] residual
provision[s], without inquiring into the specific conduct of this
particular offender." James v. United States, 550 U.S. 192, 202
(2007); e.g., Chambers v. United States, 129 S. Ct. 687, 690
(2009). If the statute clearly prohibits only one kind of conduct,
then the question is whether that conduct satisfies the definition
of "violent felony" in the ACCA. But when statutes criminalize a
range of conduct, some of which may fall outside the ACCA's
definition, courts must first determine what offense was at issue
in the underlying conviction. Courts may consider limited evidence
-- such as charging documents and jury instructions -- that show
which one of the prohibited offenses the defendant was convicted of
committing. Shepard, 544 U.S. at 21; e.g., Chambers, 129 S. Ct. at
690-91 (beginning a categorical analysis by concluding, based on
charging documents, that the defendant was convicted only of not
reporting to prison under a statute that penalized a range of
conduct, including escape).
If this underlying evidence clearly shows the basis for
the defendant's conviction, then the remaining question is whether
that specific offense falls into the definition of a "violent
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felony." E.g., Chambers, 129 S. Ct. at 690-92. But if it is
unclear from the record, then courts face a further quandary:
which offense should courts assume was the basis for conviction?
Where the offense of conviction encompasses both violent
and non-violent offenses, and the government has failed to show
under Shepard that the offense qualified as a violent felony,
Johnson seems to establish that the government has not met its
burden. When a Florida statute defined assault and battery as
involving either physical injury or touching without consent and
none of the relevant documents showed which was the basis for
Johnson's conviction, the Supreme Court concluded that the
government had proved no more than touching without consent.
Johnson, 130 S. Ct. at 1269.
When considering whether the Florida battery offense
qualified as a violent felony under the ACCA's force clause,
Johnson also established that a federal court is bound by the
construction of state law rendered by the highest court of the
state. 130 S. Ct. at 1269; Johnson v. Fankell, 520 U.S. 911, 916
(1997) ("Neither this court nor any other federal tribunal has any
authority to place a construction on a state statute different from
the one rendered by the highest court of the state.").
Accordingly, in Johnson the Court emphasized that it was bound by
the Florida Supreme Court's interpretation of the battery offense
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at issue. 130 S. Ct. at 1269. Our decision in Mangos indirectly
runs afoul of this principle.
We look to state law. According to the Massachusetts
statute prescribing the proper form of criminal indictments and
complaints, the following language is sufficient to charge an
assault and battery: "That A.B. did assault and beat C.D." Mass.
Gen. Laws ch. 277, § 79. The statute does not break the offense
down into its various types nor does it provide charging language
specific to those types. Consequently, a sentencing court may not
rely on the generic "did assault and beat" charging language to
identify which particular battery offense served as the offense of
conviction. It is clear under state court construction of the
statute that the statute encompasses a category of offenses which
are no more than offensive touchings. We believe, applying
Johnson, that the government has not established the offense of
harmful battery as the statute has been construed. Another circuit
has come to this same conclusion. United States v. Jones, 235 F.3d
342, 347 (7th Cir. 2000) ("[N]o inference regarding whether [the
defendant] committed a crime of violence can be drawn from the
charging document's use of the phrase 'did assault and beat.'").6
6
To its credit, the government does not argue that the "did
assault and beat" charging language actually signifies that the
defendant was charged with harmful battery as opposed to the other
types. It only urges the application of the law of the case and
law of the circuit doctrines.
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2. The ACCA's residual clause
In the district courts the government did not argue that
these defendants were Armed Career criminals under the residual
clause of § 924(e)(2)(B)(ii). That clause provides that an offense
can also qualify as a "violent felony" under the ACCA 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." Id. The government now seeks
affirmance on the grounds that through the convictions themselves
and the "did assault and beat" language of the indictments, it has
presented enough to show the requirements of the residual clause
have been met.
To determine whether the state statute of conviction
meets the definition of a violent felony in § 924(e)'s residual
clause we again use the categorical approach, "comparing the
elements of the state crime against the residual 'otherwise' clause
and drawing some conclusions," supplementing that comparison only
with the information contained within a narrow range of other
documents. United States v. Giggey, 551 F.3d 27, 39, 40-41 (1st
Cir. 2008); see also Shepard, 544 U.S. at 26. To fit within §
924(e)'s residual clause, the offense in question must: (1)
present a risk of physical injury similar to the risk presented by
the clause's enumerated offenses and (2) be similar "in kind" to
those offenses. Giggey, 551 F.3d at 41-42. See also Begay, 553
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U.S. at 143. An offense will be similar in kind to the enumerated
offenses if it "typically involve[s] purposeful, 'violent,' and
'aggressive' conduct." Begay, 553 U.S. at 144–45; United States v.
Almenas, 553 F.3d 27, 34 (1st Cir. 2009).
The government's argument has two discrete parts. First,
it argues that we need not reach the categorical analysis under the
ACCA's residual clause because we have already held that not only
harmful battery but also offensive battery and reckless battery
qualify as violent felonies under that clause. The government
refers again to our decision in Mangos. It asserts that in Mangos
we held that the crime of "offensive battery" could qualify as a
crime of violence under the residual clause because it "otherwise
involves conduct that presents a serious potential risk of physical
injury to another." Mangos, 134 F.3d at 464 (quoting U.S.S.G. §
4B1.2(1)(ii)). This argument is incomplete. Although we may have
discussed offensive battery in Mangos, we did not purport to
address reckless battery, a type of battery distinct from offensive
battery. See Boyd, 897 N.E.2d at 76. Moreover the government
overreaches when it says that Mangos actually held that offensive
battery qualifies as a violent felony under the residual clause.
We did not ultimately resolve whether the state conviction at issue
qualified under the force clause or the residual clause. Mangos,
134 F.3d at 464. Instead, we assumed that the assault and battery
statute covered both violent and non-violent offenses and relied on
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the "did assault and beat" charging language to categorize the
defendant's conviction as a crime of violence. Id. Indeed, it was
our reliance on the "did assault and beat" charging language that
spawned these and prior appeals.
Next, the government argues that even if we have not yet
held that the other types of battery qualify as violent felonies
under the residual clause, we should do so now on the basis of the
defendants' convictions and indictments alone. After examining the
reckless battery offense and the record before us, we decline the
invitation.
Reckless battery does not typically involve purposeful
conduct and thus is not similar in kind to the offenses enumerated
within § 924(e)(2)(B)(ii). See Begay, 553 U.S. at 145. To prove
reckless battery, the Commonwealth must establish "(1) that the
defendant's conduct involve[d] a high degree of likelihood that
substantial harm will result to another, or that it constitute[d]
. . . disregard of probable harmful consequences to another and (2)
that, as a result of that conduct, the victim suffered some
physical injury." Commonwealth v. Welch, 450 N.E. 2d 1100, 1102–03
(Mass. App. Ct. 1983) (internal quotation marks and citations
omitted). Because the Commonwealth may prove that a defendant
committed a reckless battery without establishing that the battery
was purposeful or deliberate, the mere fact of such a conviction
does not itself render the underlying offense sufficiently
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comparable to those offenses enumerated in § 924(e)(2)(B)(ii). See
United States v. Woods, 576 F.3d 400, 412–13 (7th Cir. 2009)
("[T]he residual clause encompasses only purposeful crimes; crimes
with the mens rea of recklessness do not fall within its scope.");
see also United States v. Herrick, 545 F.3d 53, 59 (1st Cir. 2008)
(holding that Wisconsin's vehicular homicide felony is not a crime
of violence because it "requires criminal negligence, defined as
conduct that the actor should realize creates a substantial and
unreasonable risk of death or great bodily harm to another").
The government has a rejoinder. It argues that because
the reckless battery offense "requires the 'intentional commission
of a wanton and reckless act'" it is a purposeful offense. But
while a defendant convicted of reckless battery may very well have
purposefully or deliberately committed certain acts, the act for
which he was convicted -- the battery of another -- needed to be
neither purposeful nor deliberate for conviction. The mere fact of
conviction of such an offense does not bring it within
§ 924(e)(2)(B)(ii). See Begay, 553 U.S. at 145 (noting that while
"a drunk driver may very well drink on purpose . . . the conduct
for which the drunk driver is convicted (driving under the
influence) need not be purposeful or deliberate," and therefore
concluding that a conviction under New Mexico's driving under the
influence law does not fit within § 924(e)(2)(B)(ii)); Woods, 576
F.3d at 410 (rejecting the government's argument that "if a
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defendant . . . intends the act but was reckless as to the
consequences of that act" that the offense may qualify as
purposeful).
An example is illustrative. In Commonwealth v. Burno,
471 N.E.2d 127 (Mass. App. Ct. 1984), the Massachusetts Appeals
Court considered the appeal of a defendant who had been convicted
of assault and battery after his car struck an occupied car. Id.
at 127.7 The court ultimately held that the evidence before it was
sufficient to convict the defendant of reckless battery, but not
intentional battery. Id. at 129. The court reasoned,
[T]he evidence tends to establish that the
defendant was traveling very fast on a wet
road, and that while he was attempting to
negotiate a left turn at the Allen Street
intersection, which requires an automobile to
bear to the right before making a left turn,
he hit the parked automobile occupied by
Officers Pidgeon and Palmer. We do not think
that permissible inferences from this evidence
were sufficient "to bring minds of ordinary
intelligence and sagacity" to conclude beyond
a reasonable doubt that the defendant
intentionally hit the automobile occupied by
Pidgeon and Palmer. On the other hand, the
jury certainly could have found the
defendant's conduct to have been reckless.
Id. (internal citation omitted). As Burno makes plain,
Massachusetts law distinguishes between intentional and reckless
7
Although the assault and battery in Burno occurred by means
of a dangerous weapon, a car, the law of simple assault and battery
governed the court's analysis. Id. at 128–29.
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batteries. For purposes of sentence enhancement under the ACCA,
that distinction is material.
A conviction under Massachusetts's simple assault and
battery statute does not alone qualify as a predicate offense under
§ 924(e)(2)(B)(ii) because the statutory definition of the offense
is not similar in kind to those enumerated offenses. Giggey, 551
F.3d at 41-42. Nor does the other permissible evidence the
government offered to the district court -- the indictments under
which the defendants were charged -- bring the state convictions
within the scope of the residual clause. Other evidence, if
admissible under Shepard, could change this calculus.
In sum, 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).8 Because the district courts
here relied on the generic "did assault and beat" charging language
when concluding that the defendants had committed harmful battery,
we must reverse and remand for resentencing.
8
In order to resolve these appeals, it is unnecessary to
decide whether, in addition to harmful battery, offensive battery
qualifies as a violent felony under the ACCA.
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III. Scope of Issues on Remand
The parties dispute what should happen upon remand. The
government argues that it should have free rein to make its case
under both the force clause of § 924(e)(2)(B)(i) and the residual
clause under § 924(e)(2)(B)(ii). The defendants argue that the
government should not get two bites at the apple.
The government's theory in the district courts was based
on the force clause, § 924(e)(2)(B)(i). At the time the government
had the opportunity to introduce Shepard type documents beyond the
indictment alone to support its theory but did not do so. Because,
however, both the government and the district courts were operating
on the premise that Mangos remained good law, the failure to
proffer such evidence was more than understandable. As to the
issue of the residual clause, no party raised or discussed the use
of that clause under the ACCA. Under the circumstances, we
perceive no unfairness in allowing the government the opportunity
to pursue both the force clause and residual clause theories on
remand, using Shepard approved documents.
IV. Conclusion
For the reasons provided above, we vacate the sentences
of the appellants and remand for resentencing.
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