United States Court of Appeals
For the First Circuit
Nos. 05-2229, 05-2230
UNITED STATES OF AMERICA,
Appellee/Cross-Appellant,
v.
CURTIS HOLLOWAY,
True Name: Curtis Kareem Holloway,
a/k/a Curtis H. Holloway,
a/k/a Curtis K. Holloway,
Defendant, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge
and Howard, Circuit Judge.
Syrie D. Fried for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States attorney was on brief, for
appellee.
Anne C. Goldbach, President, on brief for amicus curiae
Massachusetts Association of Criminal Defense Lawyers.
August 31, 2007
HOWARD, Circuit Judge. Curtis Holloway conditionally
pleaded guilty to one count of being a felon in possession of
ammunition, see 18 U.S.C. § 922(g)(1), and he was sentenced to time
served. The government appeals the sentence, and Holloway cross-
appeals the district court's denial of his motion to suppress.
I.
We recount the facts in the light most favorable to the
district court's ruling on the motion to suppress, but only to the
extent that they have support in the record and are not clearly
erroneous. See United States v. Sealey, 30 F.3d 7, 7 (1st Cir.
1994).
On December 26, 2001, special officers1 Anthony
Crutchfield and Shaheed Hall were patrolling the streets around
housing projects in the Roxbury section of Boston, Massachusetts.
At 10:30 p.m., the officers saw Holloway chasing another
individual, Memogne Lamothe. As Holloway drew closer, the officers
saw him reach into his pants pocket, as if for a weapon. Lamothe
ran inside the building at 144 Seaver Street, and the door locked
behind him, preventing Holloway from following him. Holloway
waited outside for several minutes, speaking with various
individuals. Ultimately, Gerald Scott arrived and spoke with
Holloway. Scott proceeded to shuttle back and forth between
1
These security officers were licensed by the Boston Police
Department to patrol housing developments.
-2-
Holloway and the entryway to the building at 144 Seaver Street,
apparently talking to someone inside. Holloway and Scott were then
"buzzed" into the building.
Fearing a continuation of the earlier chase, Crutchfield
and Hall immediately called their supervisor, Patrick Bailey, and
the three officers entered the building using their pass key. Once
inside, the officers saw Holloway, Scott, and Lamothe talking on
the stairway in a common area of the building. The officers
approached the men and asked what was going on. Holloway stated
that nothing was going on, but Lamothe responded that he lived in
the building, that he knew they should not be loitering in a common
area, and that they would continue their conversation in his
apartment. At this point the officers asked the three to provide
identification. Scott and Lamothe cooperated, but Holloway
refused. The officers persisted, and Holloway continued to say
that he did not have to give them identification. Lamothe then
unlocked his apartment door, but the officers directed him not to
move. Lamothe complied, but Holloway suddenly shoved Lamothe into
the officers and ran into the apartment. Hall and Crutchfield
followed, with Hall entering first and immediately yelling "Gun."
Upon entering, Crutchfield saw Holloway sitting on a chair and
ordered him to the ground. Holloway was arrested after a struggle,
and the officers recovered a loaded pistol that Hall had seen
Holloway shove under the seat of his chair. Holloway was
-3-
subsequently indicted for being a felon in possession of ammunition
that traveled in interstate commerce. See 18 U.S.C. § 922(g)(1).
Holloway moved to suppress the ammunition on the grounds
that the officers had neither reasonable suspicion that criminal
activity was afoot to justify a Terry2 stop nor probable cause to
arrest when they seized Holloway. Therefore, Holloway maintained,
any evidence that resulted from the wrongful seizure must be
suppressed. After an evidentiary hearing, at which only
Crutchfield testified, the district court denied the motion without
opinion. Thereafter, Holloway entered a plea of guilty,
conditioned on the right to appeal the denial of his suppression
motion.
At sentencing, the government argued that Holloway should
be sentenced to a mandatory fifteen-year prison term under the
Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e),3 on the basis
of Holloway's three Massachusetts convictions for assault and
battery. The government argued that each conviction was a "violent
2
Referring to the brief investigatory stop described by the
Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).
3
The ACCA provides that:
In the case of a person who violates section 922(g) of
this title and has three previous convictions ... for a
violent felony or a serious drug offense...such person
shall be fined under this title and imprisoned not less
than fifteen years....
18 U.S.C. §924(e)(1).
-4-
felony"4 under the ACCA because each was based on a charging
document which alleged that Holloway did "assault and beat" the
victim. Holloway argued that assault and battery under
Massachusetts law includes two types of conduct--harmful (violent)
conduct and nonharmful (offensive or nonconsensual) conduct--and
only convictions under the first prong are crimes of violence.
Holloway emphasized that the "assault and beat" language was used
to charge both types of batteries, and thus the charging language
was mere "boilerplate" that said nothing about the nature of the
underlying crime. Holloway further contended that the convictions
could not be deemed predicate violent offenses under the ACCA
without violating the principles set forth in United States v.
Shepard, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S.
575 (1990) because there were no other relevant judicial materials
describing the facts of the Massachusetts convictions. The
district court accepted Holloway's position and sentenced him to
time served.
4
[T]he term 'violent felony' means any crime punishable by
imprisonment for a term exceeding one year...that-
(i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to
another....
18 U.S.C. §924(e)(2)(B).
-5-
II.
A. Motion to Suppress
Holloway maintains that the district court erred in
denying his motion to suppress because the officers lacked the
reasonable suspicion necessary for a Terry stop. Holloway
emphasizes that the officers only saw three men having a peaceful
conversation in the stairwell, with no hint of violence or other
criminal activity. The government rejoins that Holloway was never
seized, as he never submitted to the officers' authority.
In evaluating a district court's assessment of a motion
to suppress, we review findings of fact for clear error and legal
conclusions de novo. United States v. Meada, 408 F.3d 14, 20 (1st
Cir. 2005). We "will uphold a denial of a motion to suppress if
any reasonable view of the evidence supports it." United States v.
Garner, 338 F.3d 78, 80 (1st Cir. 2003) (internal citation and
quotation omitted).
The primary issue is whether Holloway was "seized" by the
officers in the hallway before he dashed into the apartment.
"Under the Fourth Amendment, a seizure occurs when a police
officer, by means of physical force or a show of authority, has in
some way restrained the liberty of a citizen." Sealey, 30 F.3d at
9. The show of authority must be such that a reasonable person
would believe that he was not free to leave. See United States v.
Smith, 423 F.3d 25, 28-29 (1st Cir. 2005). In addition, a seizure
-6-
requires that the citizen must actually submit to the show of
authority. See California v. Hodari D., 499 U.S. 621, 626-629
(1991); Smith, 423 F.3d at 31-32.
The record makes it abundantly clear that Holloway never
submitted to the officers' show of authority. Holloway verbally
rejected the officers' instructions before escalating his
resistance by shoving Lamothe into the officers and trying to flee.
Such conduct does not manifest an intent to submit to the officers'
authority. See, e.g., Smith, 423 F.3d at 31-32 (attempting to flee
and struggling with officers indicates no submission to police
authority); Sealey, 30 F.3d at 9-10 (ignoring officer's questions
and fleeing was not submission to authority). Holloway was not
actually seized until the officers physically overpowered and
handcuffed him in Lamothe's apartment. See Hodari D., 499 U.S. at
629 (suspect not seized until tackled by officer). Thus, the
officers' recovery of the gun that Holloway discarded before being
arrested was not the result of a wrongful seizure. See generally
Sealey, 30 F.3d at 10 (contraband discarded by suspect while
fleeing police was not fruit of the seizure).
Holloway counters that he was "seized" when he submitted
to the officers' show of authority by initially answering their
questions, even if his answers were unsatisfactory to the officers.
This contention is unpersuasive for a host of reasons. First, the
officers' initial approach and general inquiry did not trigger
-7-
Fourth Amendment scrutiny even though Holloway responded. See
Smith, 423 F.3d at 28 (officers may approach citizens and ask
questions without any degree of suspicion). Similarly,
"interrogation relating to one's identity or a request for
identification by the police does not, by itself, constitute a
Fourth Amendment seizure." Hiibel v. Sixth Judicial Dist. Ct., 542
U.S. 177, 185 (2004)(internal citation and quotation omitted).
Lastly, Holloway's verbal challenges to the officers' authority --
generally to the effect that the officers had no authority to
bother him or ask for identification -- were not submissions to the
authority but part of his conduct in evading it.
B. Sentencing
The government argues that the district court erred in
refusing to sentence Holloway under the ACCA. The government
emphasizes that the charging documents for each of the
Massachusetts convictions specified that Holloway did "assault and
beat" his victim, which the government maintains suffices to show
that the underlying crime was a violent rather merely offensive
battery. Holloway rejoins that the "assault and beat" language in
the Massachusetts charging documents is not determinative because
it is mere boilerplate and says nothing about the nature of the
underlying offense. We review the district court's interpretation
of the ACCA de novo. United States v. Miller, 478 F.3d 48, 50 (1st
Cir. 2007).
-8-
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 that the conviction was for a violent battery and
therefore a "crime of violence" for purposes of the guidelines.
See United States v. Estevez, 419 F.3d 77, 82 (1st Cir. 2005),
cert. denied, 546 U.S. 1192 (2006); United States v. Santos, 363
F.3d 19, 23-24 (1st Cir. 2004); United States v. Mangos, 134 F.3d
460, 464 (1st Cir. 1998); see also United States v. Fink,
___F.3d___, ___ (1st Cir. 2007). Moreover, we have stated that the
definitions of "violent felony" in the ACCA and "crime of violence"
in U.S.S.G. § 4B1.1 are essentially the same, and that we may look
to cases dealing with either to inform our categorical inquiry.
See, e.g., United States v. Leahy, 473 F.3d 401, 411-12 (1st Cir.
2007); United States v. Jackson, 409 F.3d 479, 479 n. 1 (1st Cir.
2005). At bottom, our focus is on the usual type of proscribed
conduct. Santos, 363 F.3d at 23. Thus, we interpreted the
charging language in the most reasonable sense--that "the assault
amounted to a beating" of the victim. Mangos, 134 F.3d at 464.
Indeed as the Supreme Court recently held, "[w]e do not view [the
categorical approach] as requiring that every conceivable factual
offense covered by a statute must necessarily present a serious
potential risk of injury before the offense can be deemed a violent
felony." James v. United States, 127 S. Ct. 1586, 1597 (2007).
-9-
"[T]he proper inquiry is whether the conduct encompassed by the
elements of the offense, in the ordinary case, present a serious
risk of injury to another." Id.5 Thus, the district court's
conclusion was in error.
Holloway identifies no change in the law that warrants
our disregard of this circuit precedent. Instead, Holloway (and
the amici) look backward to our decision in United States v.
Harris, 964 F.2d 1234 (1st Cir. 1992), arguing that our post-Harris
precedent fundamentally misinterpreted Harris. However, it is
axiomatic that new panels are bound by prior panel decisions in the
absence of supervening authority. See, e.g., United States v.
Allen, 469 F.3d 11, 17-18 (1st Cir. 2006). Only the Supreme Court
or an en banc court can overturn prior panel precedent in ordinary
circumstances, and until such time, we are bound by Estevez and
Santos.
III.
For the reasons stated above, Holloway's conviction is
affirmed, his sentence is vacated, and the case is remanded for
resentencing consistent with this opinion.
5
We also note, as did the prior panels, that there is nothing in
the record to suggest that the batteries at issue here were of the
offensive rather than the violent variety. See Santos, 363 F.3d at
24; Mangos, 134 F.3d at 464.
-10-