United States v. Holloway

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.

-3-
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

-4-
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.

-5-
 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."

-6-
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

-7-
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

-8-
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

-9-
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.

-10-
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

-11-
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

-12-
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

-13-
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).

-14-
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

-15-
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

-16-
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.

-17-
 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

-18-
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

-19-
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

-20-
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

-21-
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.

-22-
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.

-23-
 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.

-24-