United States v. Faust , 853 F.3d 39 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 14-2292
UNITED STATES OF AMERICA,
Appellee,
v.
TODD FAUST,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Myles D. Jacobson, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
April 5, 2017
TORRUELLA, Circuit Judge. Todd Faust ("Faust") entered
a conditional guilty plea to being a felon in possession of
ammunition under 18 U.S.C. § 922(g)(1). He contends on appeal
that his conviction must be overturned because police obtained the
ammunition in violation of the Fourth Amendment and because the
statements he made to police during his station house interview
were obtained as part of a two-step interrogation technique in
violation of Miranda v. Arizona, 384 U.S. 436 (1966). Faust also
appeals his sentence on the ground that the district court
erroneously concluded that his prior convictions for resisting
arrest, Mass. Gen. Laws ch. 268, § 32B(a), and assault and battery
on a police officer ("ABPO"), Mass. Gen. Laws ch. 265, § 13A, were
violent felonies under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(2)(B) ("ACCA"). For the reasons that follow we affirm
in part and remand in part.
I. Background
On May 6, 2011, the Massachusetts Palmer District Court
issued a warrant for police to search the premises at 220 Pearl
Street, Apt. 4-R in Springfield, Massachusetts ("Apartment 4-R"),
as well as the persons of Faust and Kristina Leighty ("Leighty").
The warrant application included an affidavit from Sergeant
Boucher of the Monson Police Department and several other
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documents, including several police reports from the Chicopee
Police Department.
These documents set forth that on April 22, 2011, the
home of Joseph Barrett was broken into in Monson, Massachusetts
(the "Monson robbery"), which resulted in the theft of several
items, including a wristwatch, a laptop computer, ten rolls of
pennies, a Leatherman tool, and two women's wallets. That same
morning, a Monson police officer pulled over a vehicle that Leighty
was driving as part of a traffic stop. Faust was a passenger in
the vehicle. The officer had the vehicle towed due to a lack of
insurance and a revoked registration.1
According to the submitted documents, Leighty and Faust
remained in the area until Gregory Charbonneau ("Charbonneau")
picked them up and drove them to Apartment 4-R. Charbonneau told
police that Leighty gave him $6.50 in rolled pennies as payment
for the ride. Additionally, Leighty gifted him a watch that was
later identified as one of the items stolen during the Monson
robbery.2
1 Sergeant Boucher's affidavit noted that Leighty and Faust had
two large black bags that could have "easily conceal[ed]" the items
stolen during the Monson robbery.
2 On May 2, 2011, Charbonneau's home in Chicopee, Massachusetts
was broken into (the "Chicopee robbery"), which resulted in the
theft of nine firearms of varying calibers. Charbonneau
identified pictures of Leighty and Faust, and told police that he
suspected that Leighty was involved in the robbery of his home.
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Sergeant Boucher's affidavit concluded that based on the
timing of Leighty's gift to Charbonneau, he believed that Leighty
and Faust were in possession of additional items stolen during the
Monson robbery. The search warrant was granted on May 6, 2011.
Pursuant to the warrant, officers from the Massachusetts
State Police, the Springfield Police Department, the Monson Police
Department, the Chicopee Police Department, and the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (collectively, the
"officers") executed a search of Apartment 4-R, as well as the
persons of Leighty and Faust.
When the officers entered Apartment 4-R, Leighty told
the officers that Faust had fled upstairs. The officers followed
Faust into Apartment 5-R. Upon entering the apartment, two
officers observed Faust run towards the back door of the apartment
and drop a black backpack on the floor. Faust was apprehended as
he attempted to flee out the backdoor and was placed in handcuffs.
The officers did not advise Faust of his Miranda rights.
Officer Richard, a Springfield police officer, recovered
Faust's backpack, in which he found a loaded 9mm pistol and
ammunition for other weapons. Officer Richard asked Faust if he
Charbonneau identified Leighty as a woman he had been involved
with for several weeks and whom he knew as "Cory." Charbonneau
also identified Faust, whom he believed to be Leighty's brother,
as "Jay."
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had a right to be in Apartment 5-R and Faust responded that he did
not. Faust was held in the back porch of Apartment 5-R while the
officers assessed the scene.
Although the sequence of events is not entirely clear
from the record, it is evident that Faust spoke with Officer
Richard, Detective Dion of the Chicopee Police Department, and
Agent Meehan of the Bureau of Alcohol, Tobacco, Firearms and
Explosives while he was on the back porch. According to Officer
Richard's testimony, Faust offered, without prompting, to show him
where other stolen guns were located after Faust overheard Officer
Richard tell other officers at the scene that the gun in Faust's
backpack matched one of the guns stolen during the Chicopee
robbery.3 Officer Richard's testimony suggests that this exchange
took place before Agent Meehan spoke with Faust. However, Officer
McNally, a Springfield police officer at the time, testified that
Faust began talking to Officer Richard after Detective Dion and
Agent Meehan had spoken with Faust.
At some point, Detective Dion approached Faust and
informed him that the gun found in the backpack matched one of the
guns reported stolen during the Chicopee robbery. Detective Dion
3 The district court found that, once he was secured outside of
Apartment 5-R, Faust repeatedly asked Officer Richard what he could
do to help himself.
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told Faust that he did not have to speak with him, but inquired if
Faust would like to do so. Faust told Detective Dion that he was
willing to speak with him.
Agent Meehan also approached Faust and asked his name,
address, and whether he would like to speak with investigators.
Agent Meehan told Faust that he was interested in recovering other
guns that had been stolen during the Chicopee robbery. Faust
again indicated that he was willing to speak with the
investigators.
Subsequently, Officer Richard and Officer McNally took
Faust in a police cruiser and drove past the location where Faust
claimed that additional guns stolen during the Chicopee robbery
were located. Officer Richard and Officer McNally then drove
Faust to the Springfield police station.
Once at the station, Faust was advised of his Miranda
rights. Faust confirmed that he understood his rights and that
he wished to speak with the interviewing officers. During his
interview, Faust admitted to his involvement, alongside Leighty
and two other individuals, in the Chicopee robbery. Faust also
admitted to handling the 9mm pistol found in his possession and
stated that his fingerprints would likely be found on it.
Faust sought to suppress the statements he made during
his police station interrogation, a motion which the district court
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denied. In accordance with the ACCA, the district court sentenced
Faust to 180 months of imprisonment. During sentencing, Faust
objected to his classification as an armed career criminal on the
ground that neither his conviction for resisting arrest nor for
ABPO qualify as ACCA predicates.
This timely appeal followed.
II. Probable Cause to Search
When reviewing the denial of a motion to suppress, "we
view the facts in the light most favorable to the district court's
ruling on the motion, and we review the district court's findings
of fact and credibility determinations for clear error." United
States v. Fermin, 771 F.3d 71, 76-77 (1st Cir. 2014) (quoting
United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011))
(internal citations and quotation marks omitted). "[W]e review
conclusions of law de novo, giving plenary review to the district
court's application of law to facts, reasonable-suspicion
determinations, and ultimate decision to deny the motion." Id.
at 77 (citing Camacho, 661 F.3d at 724). However, "we afford an
ample amount of deference to the issuing magistrate's finding of
probable cause" when reviewing if an affidavit supports the issued
warrant. United States v. Dixon, 787 F.3d 55, 58 (1st Cir. 2015)
(citations omitted). As a result, we will reverse a finding of
probable cause "only if we see no substantial basis for concluding
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that probable cause existed." Id. at 59 (quoting United States
v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005)). Probable cause is
present if "the facts and circumstances as to which police have
reasonably trustworthy information are sufficient to warrant a
person of reasonable caution in the belief that evidence of a crime
will be found." United States v. Silva, 742 F.3d 1, 7 (1st Cir.
2014) (quoting Robinson v. Cook, 706 F.3d 25, 32 (1st Cir. 2013)).
"A warrant application must demonstrate probable cause
to believe that (1) a crime has been committed-the 'commission'
element, and (2) enumerated evidence of the offense will be found
at the place to be searched-the so-called 'nexus' element."
United States v. Rodrigue, 560 F.3d 29, 32-33 (1st Cir. 2009)
(quoting Ribeiro, 397 F.3d at 48). To satisfy the nexus element,
the warrant application "must give someone of 'reasonable caution'
reason to believe that evidence of a crime will be found at the
place to be searched." Ribeiro, 397 F.3d at 49 (citation omitted).
Faust contends that Sergeant Boucher's affidavit failed
to establish probable cause to search his person. Specifically,
he argues there was no probable cause to believe that the items
listed in the warrant could be found on him.4
4 Arguably, Faust has waived his challenge to the validity of the
search warrant by failing to properly develop his argument. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Because
we find that his argument fails on the merits, we opt to discuss
-8-
As the district court observed, Sergeant Boucher's
affidavit stated that: (1) Faust and Leighty had been detained for
a traffic violation on April 22, 2011, the same day as the Monson
robbery, which resulted in their vehicle being towed; (2) on that
same day Charbonneau picked up both Faust and Leighty after the
vehicle was towed; (3) Leighty gave Charbonneau a wristwatch that
was later identified as stolen during the Monson robbery; (4) the
items stolen during the Monson robbery were "the sort of items
that a person would carry on their person." Moreover, Leighty
gave Charbonneau $6.50 in rolled pennies as payment for giving her
and Faust a ride. We find that the affidavit adequately satisfied
the commission element. The fact that Leighty and Faust were
detained on the day of the Monson robbery and had items from that
robbery in their possession supports a conclusion that evidence of
the Monson robbery would be found on Faust's person. The facts
presented in a search warrant application must be such that they
permit a man of reasonable caution to conclude that "evidence of
a crime will be found." See United States v. Soto, 799 F.3d 68,
84 (1st Cir. 2015) (quoting United States v. Feliz, 182 F.3d 82,
86 (1st Cir. 1999)). Accordingly, we find that there was ample
probable cause to search Faust.
the reasons why the search warrant was valid.
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To the extent Faust is arguing that the officers could
not follow him into Apartment 5-R, we note that there is a
recognized exception to the warrant requirement when police are
faced with the "threatened escape by a suspect." Bilida v.
McCleod, 211 F.3d 166, 171 (1st Cir. 2000) (citing McCabe v. Life-
Line Ambulance Serv., Inc., 77 F.3d 540, 545 (1st Cir. 1996)).
Here, the police were executing the warrant when Leighty informed
them that Faust had fled upstairs. The police immediately pursued
Faust into Apartment 5-R where they observed him attempting to
escape through the backdoor. Thus, even if the search warrant
could not establish that the fruits of the Monson robbery could be
found inside Apartment 5-R, the police could enter Apartment 5-R
in pursuit of Faust.5
5 Faust also claims that the search of his person was the fruit
of his unlawful arrest for breaking and entering into Apartment 5-
R, and thus any evidence found in the course of the search must be
excluded. Specifically, he argues that police lacked probable
cause to arrest him for breaking and entering under Massachusetts
law because he lacked the necessary mens rea to commit that crime.
Whether arresting officers had probable cause is not measured by
the offense invoked at the time of the arrest, but rather by
examining if "the facts known at the time of the arrest objectively
provided probable cause to arrest." United States v. Jones, 432
F.3d 34, 41 (1st Cir. 2005) (citation omitted). Probable cause
to arrest hinges on whether police, "relying on reasonably
trustworthy facts and circumstances, have information upon which
a reasonably prudent person would believe the suspect had committed
or was committing a crime." Id. (quoting United States v. Young,
105 F.3d 1, 6 (1st Cir. 1997)). As a result, it is irrelevant if
Faust was arrested for breaking and entering. Here, the arresting
officers had probable cause to arrest Faust because they were aware
that he was connected to the Monson robbery and attempted to flee
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Accordingly, we find that the district court properly
denied Faust's motion to suppress.
III. Miranda
Faust posits that his post-Miranda statements at the
police station are also subject to suppression because he was
subjected an impermissible two-step interrogation tactic.
A failure to administer Miranda warnings, "unaccompanied
by any actual coercion or other circumstances calculated to
undermine the suspect's ability to exercise his free will, [does
not] so taint[] the [later] investigatory process that a subsequent
voluntary and informed waiver is ineffective for some
indeterminate period." United States v. Jackson, 544 F.3d 351,
360 (1st Cir. 2008) (quoting Oregon v. Elstad, 470 U.S. 298, 309
(1985)) (alteration in original). Thus, in the absence of
coercion or improper tactics by law enforcement in obtaining an
initial statement, a subsequent statement is admissible if the
defendant was advised of his Miranda rights and knowingly and
voluntarily waived those rights. Elstad, 470 U.S. at 318.
when police sought to execute the search warrant. Thus, a prudent
person could conclude that Faust had committed a criminal offense.
In any event, the officers recovered the backpack containing the
gun and ammunition after Faust discarded it and before he was
apprehended. Thus, Faust abandoned any expectation of privacy in
the backpack, the recovery of which did not constitute a wrongful
seizure. See United States v. Soto-Beníquez, 356 F.3d 1, 36 (1st
Cir. 2003).
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However, suppression may be proper when police
deliberately employ a two-step interrogation tactic designed to
circumvent Miranda warnings. United States v. Verdugo, 617 F.3d
565, 574-75 (1st Cir. 2010) (citing Missouri v. Seibert, 542 U.S.
600, 605-06 (2004) (plurality opinion)). The Supreme Court
addressed the use of such a tactic in Seibert. The facts at issue
in that case involved a defendant who was taken to the police
station and subjected to questioning for thirty to forty minutes
without the benefit of Miranda warnings. Seibert, 542 U.S. at
604-05. Once the defendant made a crucial admission, she was
given a twenty-minute break, after which she was provided Miranda
warnings. The defendant was then confronted with her pre-warning
statements in order to get her to repeat her confession. Id. at
605.
A four justice plurality of the Court held that, under
these circumstances, the Miranda warnings were ineffective,
thereby rendering the defendant's post-Miranda statements
inadmissible. Id. at 611-14. The plurality focused on the
circumstances surrounding the contested statements.
Specifically, the plurality considered: (1) "the completeness and
detail of the questions and answers in the first round of
interrogation"; (2) "the overlapping content of the two
statements"; (3) "the timing and setting of the first and the
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second [interrogations]"; (4) "the continuity of police
personnel"; and (5) "the degree to which the interrogator's
questions treated the second round as continuous with the first."
Id. at 615.
Justice Kennedy, who provided the fifth vote in favor of
the judgment, advanced a narrower test.6 Under Justice Kennedy's
approach the deliberate use of a two-step interrogation creates a
presumptive taint. Id. at 622 (Kennedy, J., concurring). However,
when police do not employ a two-step tactic, "[t]he admissibility
of postwarning statements should continue to be governed by the
principles of Elstad . . . ." Id.
Here, the result is the same under either approach.
Faust's contention withers under the plurality's analysis. The
testimony provided at the evidentiary hearing does not support a
conclusion that the questions posed in Apartment 5-R formed part
of a larger continuous investigation that persisted at the police
station. The record illustrates that Faust was read his rights
6 We note that some Circuits have held that Seibert's reach is
limited by Justice Kennedy's vote. See United States v. Jackson,
608 F.3d 100, 103-04 (1st Cir. 2010) (collecting cases). In
contrast, we have not settled on a definitive reading of Seibert.
Compare Jackson, 608 F.3d at 103-04 (applying both the plurality's
and Justice Kennedy's test), with United States v. Rogers, 659
F.3d 74, 79 (1st Cir. 2011) (referring to Justice Kennedy's opinion
as controlling). Because we find that Faust's argument fails
under either approach, there is no need to address this question
here.
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at the police station and voluntarily waived them. Further, there
is no evidence that police leveraged Faust's post-Miranda
statements by utilizing any of his pre-Miranda responses. In sum,
we agree with the district court's conclusion that Faust was not
submitted to a two-step interrogation because the timing and
settings of the pre-Miranda and post-Miranda questioning were
different; the type of questions and their degree of detail varied
greatly; and the pre-Miranda and post-Miranda questioning were not
part of the same continuum.
We reach an identical result under Justice Kennedy's
test. Nothing in the record reveals the use of a deliberate two-
step strategy geared towards leveraging Faust's confession. In
the absence of such a tactic, Faust's station house statements are
admissible if he was provided with Miranda warnings and he
voluntarily and knowingly waived his rights. See Elstad, 470 U.S.
at 318. As mentioned above, there is no indication that the
officers employed a two-step tactic designed to circumvent Miranda
or leverage Faust's confession. Moreover, the record confirms
that Faust was advised of his Miranda rights and that he knowingly
and voluntarily waived them. As such, his post-warning statements
are not subject to suppression.
Faust also contends that the district court erred when
it found that Faust offered to speak to Officer Richard before
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Detective Dion and Agent Meehan approached him. As we pointed out
earlier, the record is unclear as to the precise sequence of events
after Faust's apprehension in Apartment 5-R. Due to this lack of
clarity, we cannot conclude that the district court's conclusion
was clear error. See In re Brady-Zell, 756 F.3d 69, 72 (1st Cir.
2014) ("[I]t is apodictic that where the facts can support two
plausible but conflicting interpretations of a body of evidence,
the factfinder's choice between them cannot be clearly erroneous."
(citations omitted)).7
IV. Sentence Enhancement Under the ACCA
The district court found that Faust was subject to a
fifteen-year enhancement of his sentence under the ACCA. The ACCA
enhancement applies when a defendant is convicted of being a felon
in possession of a firearm and "has three previous convictions
. . . for a violent felony or a serious drug offense, or both."
18 U.S.C. § 924(e)(1). For our purposes, the relevant definition
of "violent felony" under the ACCA is "any crime punishable by
imprisonment for a term exceeding one year . . . that--(i) has as
7 Faust also argues that his post-Miranda statements should be
suppressed because he was searched in violation of the Fourth
Amendment. However, we have already found that Faust was properly
searched in accordance with the warrant and that police had
probable cause to arrest Faust.
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an element the use, attempted use, or threatened use of physical
force against the person of another." Id. § 924(e)(2)(B).
Faust has two uncontested predicate convictions that
qualify as "serious drug offense[s]" and two possible violent
felonies that are at issue in this appeal: a conviction for
resisting arrest and two convictions arising out of the same
conduct for assault and battery on a police officer (ABPO).8
The district court found that Faust's convictions for
ABPO and resisting arrest both counted as predicate convictions.
In so finding the judge explicitly stated that he felt bound by
First Circuit precedent: United States v. Carrigan, 724 F.3d 39
(1st Cir. 2013) and United States v. Weekes, 611 F.3d 68 (1st Cir.
2010) with respect to resisting arrest, and United States v. Dancy,
640 F.3d 455 (1st Cir. 2011) for ABPO. Applying the ACCA
enhancement, the district court sentenced Faust to fifteen years
of imprisonment, though he specifically stated that he believed
"the 15-year sentence in this case is excessive" and that he
"wouldn't be imposing a 15-year sentence if [he] wasn't required
to."
8 Because they were committed during a single course of conduct,
only one of the ABPO convictions may count as a predicate offense.
18 U.S.C. § 924(e)(1)(predicate convictions must be for crimes
"committed on occasions different from one another").
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Because Carrigan and Weekes have been called into
question by the Supreme Court's recent case of Mathis v. United
States, 136 S. Ct. 2243 (2016), and Dancy relied upon a portion of
18 U.S.C. § 924(e) that has since be deemed unconstitutionally
vague, Johnson v. United States ("Johnson II"), 135 S. Ct. 2551,
2563 (2015), we must return to the questions previously determined
by those cases: do the Massachusetts offenses of resisting arrest
and ABPO qualify as violent felonies under the ACCA? We review
de novo "[w]hether a prior conviction qualifies as an ACCA
predicate." United States v. Whindleton, 797 F.3d 105, 108 (1st
Cir. 2015) (citing Carrigan, 724 F.3d at 48).9
A. Applicable Law
1. Step One: Categorical Approach
The basis of all of our ACCA decisions can be found in
Taylor v. United States, 495 U.S. 575 (1990), which held that in
determining whether a particular conviction would count as an ACCA
predicate courts must take a "categorical" approach. Id. at 602.
9 The government claims that Faust waived his arguments under the
ACCA because they allege he based his argument below on Johnson v.
United States ("Johnson I"), 559 U.S. 133 (2010), rather than on
the question of divisibility as it is being presented to us now.
This argument is without merit. In his objections below Faust's
counsel specifically referenced Descamps v. United States, 133 S.
Ct. 2276 (2013), the then-most-current authority on divisibility,
and the district court specifically stated that Faust had preserved
his objections under Descamps.
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This means that a prior conviction will either count or not based
solely on the fact of conviction rather than on facts particular
to the individual defendant's case. Id. (finding that "the only
plausible interpretation" of the ACCA is that "it generally
requires the trial court to look only to the fact of conviction
and the statutory definition of the prior offense"); see also
Whindleton, 797 F.3d at 108 (same). The Taylor court based its
decision on the statutory language of the ACCA, its legislative
history, and the practical difficulties as well as potential
unfairness of a factual approach. Id. at 600-01. The Court's
evolving Sixth Amendment jurisprudence has made clear, however,
that this "potential unfairness" actually envelops constitutional
limitations dictating the categorical approach. Descamps, 133 S.
Ct. at 2288 (pointing to the "categorical approach's Sixth
Amendment underpinnings" and reasoning that a finding by the
sentencing court that "went beyond merely identifying a prior
conviction . . . to 'make a disputed' determination about what the
defendant and state judge must have understood as the factual basis
of the prior plea" would raise "serious Sixth Amendment concerns"
(internal citation omitted)); see also Mathis v. United States,
136 S. Ct. 2243, 2252 (2016)(citing "serious Sixth Amendment
concerns" if a sentencing judge were permitted to go beyond the
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elements of the statute in determining whether a previous
conviction qualifies as a predicate).
In applying the categorical approach to offenses that
involve the force clause, the Supreme Court has made clear that
the term physical force "means violent force -- that is, force
capable of causing physical pain or injury to another person."
Johnson I, 559 U.S. at 140 (emphasis in the original). Thus, the
question is whether the predicate offense contains as an element
violent force capable of causing physical pain or injury.
Therefore, the first question a sentencing court must
answer when applying the ACCA is whether all of the conduct covered
by the statute categorically requires violent force. If the
answer is yes, then a conviction under the statute will always
count as a predicate under the ACCA. If the answer is no, then
the court must move to step two and determine whether the statute
is divisible.
2. Step Two: Divisibility
Taylor recognized that the categorical approach would
face difficulties in states where the state statute defined the
predicate offense "more broadly" than was found in the ACCA. 495
U.S. at 599. In those situations, the Taylor court held, the
categorical approach "may permit the sentencing court to go beyond
the mere fact of conviction in a narrow range of cases where a
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jury was actually required to find all the elements of [the ACCA
defined offense]." Id. at 602 (providing as an example a situation
where a "burglary statute[] include[s] entry of an automobile as
well as a building, if the indictment or information and jury
instructions show that the defendant was charged only with a
burglary of a building, and that the jury necessarily had to find
an entry of a building to convict, then the Government should be
allowed to use the conviction for enhancement.").
These "narrow range of cases" are now referred to as
employing, somewhat misleadingly, the modified categorical
approach. Whindleton, 797 F.3d at 108 (citing Descamps, 133 S.
Ct. at 2281). The term is somewhat misleading because the framework
is still categorical in the sense that the elements of the offense
of conviction are compared with the elements of the statutory
offense and only if they align may the offense count as a violent
felony. Descamps, 133 S. Ct. at 2285 ("[T]he modified approach
merely helps implement the categorical approach. . . . And it
preserves the categorical approach's basic method: comparing
those elements with the generic offense's."). Because the statute
in question sweeps more broadly than the definition provided by
Congress, however, it is necessary to separate out those offenses
listed in the statute that align with Congress's definition from
those that do not and to determine which offense formed the basis
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of the defendant's prior conviction. The modified categorical
approach thus involves a two-stage process: determine if the
statute contains discrete offenses that can be separated from each
other (termed "divisibility") and determine under which the
defendant was convicted. Id. at 2281; see also United States v.
Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015) (discussing
divisibility and the application of the modified categorical
approach).
While this appeal was pending the Supreme Court handed
down Mathis v. United States, 136 S. Ct. 2243 (2016), which
purports to clarify prior case law on when a statute may be deemed
divisible. Mathis reiterates a focus on "the elements of the
crime of conviction," which it defines as
the "constituent parts" of a crime's legal definition
--the things the "prosecution must prove to sustain a
conviction." At a trial, they are what the jury must
find beyond a reasonable doubt to convict the
defendant, and at a plea hearing, they are what the
defendant necessarily admits when he pleads guilty.
Id. at 2248 (citations omitted)(quoting Black's Law Dictionary 634
(10th ed. 2014)). Mathis distinguishes between statutes that
"list[] multiple elements disjunctively" and ones "that
enumerate[] various factual means of committing a single element."
Id. at 2249. The Court used a hypothetical from Descamps to
illustrate this distinction:
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suppose a statute requires use of "a deadly weapon"
as an element of a crime and further provides that
the use of a "knife, gun, bat, or similar weapon"
would all qualify. Because that kind of list merely
specifies diverse means of satisfying a single element
of a single crime--or otherwise said, spells out
various factual ways of committing some component of
the offense--a jury need not find (or a defendant
admit) any particular item.
Id. (citation omitted)(quoting Descamps, 133 S. Ct. at 2289).
Mathis thus directs that when a sentencing court is faced
with a statute that lists alternatives, it must first determine
"whether its listed items are elements or means." Id. at 2256.
If they are elements then the court proceeds to apply the modified
categorical approach and determine which "of the enumerated
alternatives played a part in the defendant's prior conviction,
and then compare that element (along with all others) to those of
the generic crime." Id. If they are means, however, then the
court's inquiry is at an end and the sentencing court may not delve
into the facts of the case to determine which means this particular
defendant used to commit the offense. Id.
As to the "threshold inquiry--elements or means?,",
Mathis states that this need not be difficult. Id. Mathis itself
relies on a state court decision that specified that the statute
in question listed alternative means of committing a single
offense.10 Id. Mathis also directs the sentencing court to the
10 In deciding the case on this basis, Mathis answered a question
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statute itself. "If statutory alternatives carry different
punishments, then under Apprendi they must be elements." Id.
(citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). "[I]f
state law fails to provide clear answers," then Mathis directs the
sentencing court to "'peek at the [record] documents' . . . for
'the sole and limited purpose of determining whether [the listed
items are] element[s] of the offense.'" Id. at 2256-57. (quoting
Rendon v. Holder, 782 F.3d 466, 473-74 (9th Cir. 2015) (Kozinkski,
J., dissenting from denial of reh'g en banc)). For example, if
the indictment and jury instructions reiterate "all the terms of
[the] law" then "[t]hat is as clear an indication as any that each
alternative is only a possible means of commission, not an element
that the prosecutor must prove to a jury beyond a reasonable
doubt." Id. at 2257. Similarly, "if those documents use a single
umbrella terms like 'premises': Once again, the record would then
reveal what the prosecutor has to (and does not have to)
demonstrate to prevail." Id. If, at the end of this review "such
record materials" do not "speak plainly," then "a sentencing judge
will not be able to satisfy 'Taylor's demand for certainty' when
left open by Descamps as to whether a state court decision can
provide guidance in determining if something is an element or a
means. See Descamps, 133 S. Ct. at 2291.
-23-
determining whether a defendant was convicted of a generic
offense." Id. (quoting Shepard, 544 U.S. at 21).
3. Step Three: Determining the Offense of Conviction
If a statute is found to be divisible, then the
sentencing court must proceed to the third and final step and
determine which offense the defendant was actually convicted of.
This step is guided by the Supreme Court's opinion, Shepard v.
United States, 544 U.S. 13 (2005). There the Supreme Court
specified what documents the sentencing court could reference in
order to determine which of the multiple offenses listed in the
statute was the crime committed by the defendant: "the statutory
definition, charging document, written plea agreement, transcript
of the plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented." Id. at 16. These became
known as Shepard documents. See, e.g., Sauceda v. Lynch, 819 F.3d
526, 531 (1st Cir. 2016). Even at this stage, however, the
district court's task is not to fit the facts of the individual
defendant's conduct into one of the divisible offenses. Mathis,
136 S. Ct. at 2251 ("How a given defendant actually perpetrated
the crime--what we have referred to as the 'underlying brute facts
or means' of commission--makes no difference." (quoting Richardson
v. United States, 526 U.S. 813, 817 (1999))). Rather, the question
is "whether the plea had 'necessarily' rested on the fact
-24-
identifying the [offense] as generic." Shepard, 544 U.S. at 21
(quoting Taylor, 495 U.S. at 602).
B. Massachusetts Resisting Arrest
1. Step One: Categorical Approach
Resisting Arrest in Massachusetts is defined by Mass.
Gen. Laws ch. 268, § 32B(a), which states:
A person commits the crime of resisting arrest if he
knowingly prevents or attempts to prevent a police
officer, acting under color of his official authority,
from effecting an arrest of the actor or another by:
(1) using or threatening to use physical force or
violence against the police officer or another; or
(2) using any other means which creates a substantial
risk of causing bodily injury to such police officer
or another.
While the first form of resisting arrest was held to
"fit[] squarely within the definition of a crime of violence," the
second qualified under the so-called residual clause. United
States v. Almenas, 553 F.3d 27, 33, 35 (1st Cir. 2009). This
clause defined as a violent felony any offense which "involves
conduct that presents a serious potential risk of physical injury
to another." 18 U.S.C. § 924(e)(2)(B)(ii). It was invalidated
as unconstitutionally vague by the Supreme Court in Johnson II,
135 S. Ct. at 2563. The government concedes that the second form
of resisting arrest, which could be accomplished by merely
stiffening one's arm to avoid being handcuffed, does not survive
-25-
as a violent felony. Commonwealth v. Grandison, 741 N.E.2d 25,
35 (Mass. 2001)(stiffening arms to avoid being handcuffed is
identified as one of "any other means" that creates a "substantial
risk of bodily injury"). Because a portion of the statute
therefore defines offenses that do not meet the requirements of 18
U.S.C. § 924(e)(2)(B), resisting arrest cannot categorically
qualify as a predicate under the ACCA. We therefore turn to step
two to determine whether the statute is divisible.
2. Step Two: Divisibility
This offense was previously found by this court to be
divisible. Carrigan, 724 F.3d at 50. Following Mathis and its
requirement that for a statute to be divisible the listed
alternatives must be different elements rather than merely
different means of committing an offense, the government now
concedes that state law sources are equivocal as to whether
resisting arrest is divisible. Mathis, 136 S. Ct. at 2256. The
government bases its concession on the following: the lack of clear
state court decisions parsing the elements of the offense; the
lack of distinct penalties for the two "types" of resisting listed
in the statute; Faust's indictment, which charges both variants;
Faust's plea colloquy, which does not recite the elements of the
offense; the model complaint, which charges both forms; and the
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model jury instructions, which list both alternatives within a
single element of "resisting."11
These pieces of evidence persuasively establish that the
Massachusetts offense of resisting arrest is not divisible. When
there is no state law ruling "definitively answer[ing] the
question," we are called upon to examine the statute. Id. "If
statutory alternatives carry different punishments, then under
Apprendi they must be elements." Id. Here the punishment for
resisting arrest is not impacted by whether the first or second
method of committing the offense is used. Mass. Gen. Laws ch.
268, § 32B(d)("Whoever violates this section shall be punished by
imprisonment in a jail or house of correction for not more than
two and one-half years or a fine of not more than five hundred
dollars, or both."). The model charging language used by district
courts in Massachusetts list both types of resisting arrest.
District Court Complaint Language Manual 378 (2016). Faust's own
indictment followed this model language. The model jury
instructions used for resisting arrest list both subsections (1)
and (2) as alternatives under a single element of resistance.12
11 Among the pieces of evidence cited by the government both for
resisting arrest and ABPO are Faust's Shepard documents. These
were not produced below. Rather, the government provided them for
the first time as part of its supplemental briefing.
12 We note that Mathis does not make clear whether model jury
instructions may always be used. Mathis permits a sentencing
-27-
Massachusetts Criminal Model Jury Instructions for Use in the
District Court, Instruction 7.460, at 1-2 (2009); see also Mathis,
136 S. Ct. at 2257 (finding that an indictment and "correlative
jury instructions" that reiterate all the terms of the statute
"[are] as clear an indication as any that each alternative is only
a possible means of commission, not an element that the prosecutor
must prove to a jury beyond a reasonable doubt."). Finally,
Faust's plea colloquy with the sentencing judge did not specify
the elements of resisting arrest and when entering his plea Faust
court to "peek at the [record] documents" -- the documents being
the Shepard documents. 136 S. Ct. at 2256. In a case such as
this one where the defendant pled guilty there are no jury
instructions included in the Shepard documents. Using model jury
instructions in such a situation might suggest greater clarity to
the question than the guilty plea documents might give (indeed, as
we will see below, they might make a dispositive difference).
While we note these concerns, we opt to use model jury instructions
as one of the many pieces of evidence we will consult to determine
divisibility. This is in keeping with Taylor's admonishment that
an offense should count or not based solely on the fact of
conviction, suggesting that the outcome should not depend on how
the defendant was found guilty. 495 U.S. at 602. Moreover, the
concerns raised above will still be relevant in, and perhaps better
addressed at, step three, when the sentencing court has to
determine the actual offense of conviction. A determination that
a statute is divisible does not absolve the sentencing court from
having to make the further finding of what this particular
defendant necessarily pled guilty to, and if the answer to that
question is not clear then the conviction cannot count as a
predicate, even if the statute is divisible and some convictions
under it categorically are predicates. Mathis, 136 S. Ct. at 2257
(citing the need for the sentencing court to meet "Taylor's demand
for certainty" (quoting Shepard, 544 U.S. at 21)).
-28-
was simply asked "as to count ten, charging resisting arrest, how
do you wish to plead, sir?" to which he replied "[g]uilty."
All of these pieces of evidence point to the same
conclusion: sections (1) and (2) of the Massachusetts resisting
arrest statute merely list two different means of committing a
single element of "resisting." Because resisting arrest is not
categorically a violent felony and the offense is not divisible,
Faust's Massachusetts conviction for resisting arrest cannot be
counted as a "violent felony" under the ACCA.13 Given that Faust's
resisting arrest conviction does not qualify him for an ACCA
enhancement, we turn now to his ABPO convictions and ask the same
questions again: does the state statute categorically require
violent force, and, if not, is it divisible?
C. Massachusetts ABPO
1. Step One: Categorical Approach
The ABPO statute provides that a person commits ABPO
when he "commits an assault and battery upon any public employee
when such person is engaged in the performance of his duties at
the time of such assault and battery." Mass. Gen. Laws ch. 265,
13 A recent case in this court examined the question of whether
the first "type" of resisting arrest is categorically a violent
felony, but because the defendant in that case did not contest
divisibility the court's opinion did not examine that question.
United States v. Tavares, 843 F.3d 1, 10 (1st Cir. 2016). We thus
now answer a question left open by the defendant in that case.
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§ 13D. The Massachusetts's statute for assault and battery, Mass.
Gen. Laws ch. 265, § 13A, encompasses the common-law variants of
assault and battery. Commonwealth v. Eberhart, 965 N.E.2d 791,
798 (Mass. 2012) (citations omitted). Under the common law, there
are two theories of assault and battery: intentional battery and
reckless battery. Id. at 798 n.13 (citing Commonwealth v. Porro,
939 N.E.2d 1157, 1162 (Mass. 2010)). Intentional assault and
battery includes both harmful battery and offensive battery.
Harmful battery is defined as "[a]ny touching 'with such violence
that bodily harm is likely to result.'" Eberhart, 965 N.E.2d at
798 (quoting Commonwealth v. Burke, 457 N.E.2d 622, 624 (Mass.
1983)). Offensive battery is defined as any unconsented touching
that constitutes an "affront to the victim's personal integrity."
Id. (quoting Burke, 457 N.E.2d at 624). In contrast, reckless
battery involves the "wilful, wanton and reckless act which results
in personal injury to another." Id. (quoting Commonwealth v.
Welch, 450 N.E.2d 1100, 1102 (Mass. Ct. App. 1983)).
The government concedes that offensive assault and
battery does not qualify as requiring "violent force" under Johnson
I. Indeed, this has been recognized in this circuit long before
Johnson I and ever since the first case to apply assault and
battery as an ACCA predicate, United States v. Bregnard, 951 F.2d
457, 459 (1st Cir. 1991). Because the statute is thus overbroad,
-30-
we must turn to the question of whether ABPO is divisible among
the different types of assault and battery.
2. Step Two: Divisibility
On its face this statute does not appear to list
potential crimes in the alternative (listing, for example,
harmful, offensive, or reckless battery). It simply states
"assault and battery." Similarly, the punishment for ABPO is in
no way altered by whether it involved harmful, offensive or
reckless battery. Mass. Gen. Laws ch. 265, § 13D (providing that
anyone guilty of "an assault and battery upon any public employee
. . . shall be punished by imprisonment for not less than ninety
days nor more than two and one-half years in a house of correction
or by a fine of not less than five hundred nor more than five
thousand dollars"); see Mathis, 136 S. Ct. at 2256 (stating that
"[i]f statutory alternatives carry different punishments, then
under Apprendi they must be elements"). Because the statute
itself fails to make clear whether the different forms of assault
and battery are separate elements or merely distinct means of
committing a single element (the element being assault and battery)
we turn to other sources to determine divisibility.
a. Commonwealth v. Eberhart
If state law is clear that the alternatives are elements
or means then that can resolve the question of divisibility.
-31-
Mathis, 136 S. Ct. at 2256. In its brief to us the government
argued that the question of divisibility was determined by the
Massachusetts Supreme Judicial Court case Commonwealth v.
Eberhart, 965 N.E.2d 791, 798 (Mass. 2012). Because the government
backed away from this position at oral argument we will not tarry
over it here, except to say that it was wise for them to have done
so. Eberhart defines the elements of the different types of
assault and battery under Massachusetts law and holds that assault
and battery is divisible between these types under Massachusetts's
similarly worded sentence enhancement statute. This would appear
to control in this case except that, in defining those elements,
at no point does Eberhart state that any of them must be found
beyond a reasonable doubt by a jury or necessarily admitted to by
a defendant when he or she pleads guilty to an ABPO. This question
is crucial because that is how Mathis defines the term "element"
in the ACCA. 136 S. Ct. at 2248. Thus, it is not enough that
Eberhart states that there are three types of assault and battery
under state law and then lists their elements or even that Eberhart
found assault and battery to be divisible under Massachusetts's
sentencing enhancement statute. 965 N.E.2d at 796, 800. The
foundational question is what are the elements of ABPO and Mathis
directs that this is answered by determining what a jury has to
find beyond a reasonable doubt or a defendant must necessarily
-32-
admit when pleading guilty. Because Eberhart does not answer this
threshold question for us, it cannot be dispositive in this case.
b. United States v. Tavares
At oral argument the government switched gears and
argued that our decision is dictated by this court's recent
decision, United States v. Tavares, 843 F.3d 1 (1st Cir. 2016).
Tavares examined the divisibility of assault and battery in
Massachusetts by examining recent state court decisions as well as
model jury instructions. In particular, it noted that the recent
Appeals Court of Massachusetts case Commonwealth v. Mistretta, 995
N.E.2d 814 (per curiam), rev. denied, 996 N.E.2d 881 (Mass. 2013)
suggests that assault and battery is not divisible. 843 F.3d at
15. In that case, the court found that the intentional and reckless
forms of assault and battery "are closely related subcategories of
the same crime," and therefore "[s]pecific unanimity is not
required, because they are not 'separate, distinct, and
essentially unrelated ways in which the same crime can be
committed.'" Mistretta, 995 N.E.2d at 815-16 (citation omitted).
The Tavares opinion states that "[b]ased on Mistretta" the 2016
model jury instructions no longer required a "verdict slip or
-33-
specific unanimity instruction[s]" where both forms of assault and
battery were alleged. 843 F.3d at 14.
Because Mistretta is an Appeals Court decision, however,
Tavares proceeds to "predict how the SJC would decide whether a
specific unanimity instruction is required," using Mistretta as a
piece of relevant evidence but not determinative of the outcome.
Id. at 15. In particular, Tavares looks to an earlier SJC case,
Commonwealth v. Santos, 797 N.E.2d 1191 (Mass. 2003), which
concluded that a jury did not need to be unanimous on the theories
underlying the "'assault' element of armed robbery." Id. at 1194.
The SJC found instead that the different theories are actually
"overlapping subcategories of a single element into separate
'theories.'" Id. at 1196. The SJC reasoned that in order to
require unanimity the different methods of committing the offense
have to be "substantively distinct or dissimilar." Id. at 1197-
98. It then cited two offenses having different mens rea
requirements (voluntary and involuntary manslaughter) as being an
example of "substantively distinct or dissimilar" offenses that
would require juror unanimity. Id. at 1197. Based in part on
this argument, Tavares "predict[s] that the SJC would not follow
Mistretta" and holds that assault and battery is divisible between
its intentional and reckless forms. Id. at 17.
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Tavares involved the career offender provision of the
Sentencing Guidelines, though we have previously found that "the
terms 'crime of violence' under the career offender guideline and
'violent felony' under the ACCA are nearly identical in meaning,
so that decisions construing one term inform the construction of
the other." United States v. Willings, 588 F.3d 56, 58 n.2 (1st
Cir. 2009); see also United States v. Fields, 823 F.3d 20, 35
(2016)(same). This would suggest that Tavares's determination
that assault and battery in Massachusetts is divisible between
intentional assault and battery and reckless assault and battery
precludes any other determination by this court.
The defendant argues, however, that he should not be
bound by Tavares's holding specifically because that case involved
the Sentencing Guidelines whereas his involves the ACCA. He
argues that because the Sentencing Guidelines are non-binding,
whereas the ACCA creates a mandatory minimum, both due process as
well as the Sixth Amendment dictates that we cannot take an
informed prophecy approach to state law but must, rather, determine
what the law was at the time of his conviction.
This argument is supported by the Supreme Court's
decision of McNeill v. United States, which makes clear that when
applying the ACCA the task for the sentencing court is to determine
the defendant's "previous conviction" and "[t]he only way to answer
-35-
this backward-looking question is to consult the law that applied
at the time of that conviction." 563 U.S. 816, 820 (2011). In
making this argument the unanimous Court in McNeill pointed to its
previous ACCA cases, which looked to the versions of state law
that were current at the time of the defendant's convictions, not
at the time of the Court's decision. Id. at 821-22 (calling them
"the historical statute of conviction").
The approach that McNeill dictates that we take in ACCA
cases thus conflicts with the "informed prophecy" approach in
Tavares. 843 F.3d at 14. We can avoid this conflict, however,
because Faust was convicted of ABPO in 2009, prior to the Mistretta
decision but following Santos. We thus find the "informed prophecy"
approach unnecessary for the resolution of this case in which the
defendant was clearly convicted of ABPO prior to Mistretta.14 At
that time, the model jury instructions provided that
If the evidence would warrant a guilty verdict for
the offense of assault and battery on more than one
theory of culpability, the judge must provide the jury
with a verdict slip to indicate the theory or theories
on which the jury bases its verdict and, on request,
instruct the jurors that they must agree unanimously
on the theory of culpability.
14 We note that apparently neither the government nor the
defendant in Tavares argued whether a historical approach should
be taken in determining the offense of conviction even though
Tavares's own conviction also predated Mistretta. United States
v. Tavares, No. 14-2319, at 2 (1st Cir. Mar. 1, 2017)(Docket No.
94).
-36-
Massachusetts Criminal Model Jury Instructions for Use in the
District Court, Instruction 6.210, at 8 n.1 (May 2011)(citations
omitted). This requirement of juror unanimity between the
intentional and reckless forms of ABPO is strong evidence that
Faust's conviction for ABPO was divisible between those two forms.
We acknowledge, however, that there are considerations
that point in the opposite direction. As with Faust's resisting
arrest conviction, Faust's indictment merely states that he did
"assault and beat" a police officer while the model complaint
language similarly dictates the simple "did assault and beat"
language. Finally, Faust's plea colloquy fails to include anywhere
the terms "intentional assault and battery" or "reckless assault
and battery." Rather, the judge simply asked Faust "[h]as your
attorney explained to you what the Commonwealth would have to prove
in order for you to be found guilty of these charges?" to which
Faust answered "[y]es," and then the judge asked "[a]ttorney
Bernard, have you explained to your client the elements?" to which
Faust's attorney responded "[a]ll the essential elements, yes."
Following this exchange the clerk asked Mr. Faust "as to counts
five and six, each charging assault and battery on a police officer
. . . how do you wish to plead, sir?" to which Faust replied
"[g]uilty." The plea colloquy thus leaves equivocal what, exactly,
the essential elements were believed to be.
-37-
Given Mathis's specific reference to what a jury
"necessarily" must find in order to convict, however, we find the
model jury instructions to be particularly persuasive and hold
that at the time of his guilty plea Faust's ABPO conviction was
divisible between the intentional and reckless forms. 136 S. Ct.
at 2255. We do not find, however, any indication that the
intentional form was further divisible between offensive and
harmful assault and battery. 15 Because offensive assault and
battery does not require violent force, the intentional form of
ABPO is therefore overbroad and categorically cannot count as a
predicate for ACCA purposes.
3. Step Three: Determining the Offense of Conviction
The district court below found that the offense of ABPO
qualified as an ACCA predicate under then controlling First Circuit
precedent, Dancy, 640 F.3d at 470. Having so found, it did not
need to turn to the question of which type of ABPO Faust
committed.16 As outlined above, we now hold that ABPO is divisible.
15 As with resisting arrest above, all evidence indicates that
intentional assault and battery is not divisible between the
harmful and offensive forms. In particular, the model jury
instructions for intentional ABPO state that the jury must find
"That the touching was either likely to cause bodily harm to [the
alleged victim], or was done without his (her) consent."
Massachusetts Criminal Model Jury Instructions for Use in the
District Court, Instruction 6.210, at 8 n.1 (May 2011)(emphasis in
original).
16 In part for this reason we will subject Faust's argument that
-38-
Once a sentencing court determines that a defendant has a prior
conviction under a divisible statute, it must proceed to step three
and determine which among the multiple crimes listed was the
offense of conviction. The Supreme Court provided guidance on how
to conduct this inquiry in Shepard. There it enumerated the
documents that the sentencing court might consult at this stage:
"the terms of the charging document, the terms of a plea agreement
or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or . . .
some comparable judicial record of this information." Shepard,
544 U.S. at 26. If, at sentencing, the district court is faced
with a predicate conviction that is based on a divisible offense
then it must consult approved Shepard documents in order to
determine which of the offenses the defendant "necessarily" pled
guilty to. Id. at 21.17
In its supplemental brief the government included all of
Faust's Shepard documents and urged us to affirm Faust's conviction
the government has not proven which type of ABPO offense he
committed to de novo review. Additionally, although the government
argues that Faust's divisibility argument is waived, see supra
n.9, it does not argue that the question of which form of ABPO
Faust committed should be subject to plain error review.
17 Previous of our cases have grappled with the question of whether
it is plain error to, at this stage, rely on the presentence
report's ("PSR") categorization of a prior conviction as a
predicate offense when there has been no objection by the
defendant. See, e.g., Serrano-Mercado, 784 F.3d at 846-48
-39-
because the facts he admitted as part of his plea colloquy were
consistent with harmful battery. At oral argument the government
switched gears and urged us to affirm Faust's sentence because the
facts he admitted as part of his plea colloquy were consistent
with reckless battery. The government therefore appears to all
but concede that the facts admitted by Faust during his plea could
be consistent with either intentional battery or with reckless
battery.
As we stated earlier, if "such record materials" do not
"speak plainly," then "a sentencing judge will not be able to
satisfy 'Taylor's demand for certainty' when determining whether
a defendant was convicted of a generic offense." Mathis, 136 S.
Ct. at 2257 (quoting Shepard, 544 U.S. at 21). Facts that are as
consistent with intentional ABPO as they are with reckless ABPO
(summarizing cases and concluding that whether or not there was
plain error, in none of the cases was it prejudicial to have relied
on an unobjected to PSR). The court in those cases faced a
markedly different situation from the one with which we are
presented. Here Faust did object to the PSR's categorization of
his prior offenses. In that situation "a presentence report in a
subsequent case ordinarily may not be used to prove the details of
the offense conduct that underlies a prior conviction." United
States v. Dávila-Félix, 667 F.3d 47, 57 (1st Cir. 2011)(quoting
United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir.
2006)). Moreover, Mathis makes clear that the elemental approach
dictates that the question at this stage of the inquiry is what
the defendant "necessarily admitt[ed] when he [pled] guilty." 136
S. Ct. at 2248. The factual account of Faust's prior conviction
that is included in his PSR simply cannot provide an answer to
this inquiry.
-40-
can hardly be said to "speak plainly." More to the point, however,
although step three invites the district court to examine the
documents of the convicting court, the question to be answered
remains concentrated on the elements of the actual offense of
conviction rather than on the specific facts of Faust's conduct.
The enquiry posed in step three is no broader than that posed under
step two: what did Faust "necessarily admit[] when he [pled]
guilty"? Mathis, 136 S. Ct. at 2248; see also Shepard, 544 U.S.
at 26 (defining the "enquiry" to be "whether a plea of guilty to
burglary defined by a nongeneric statute necessarily admitted
elements of the generic offense"). The aim therefore remains on
determining the elements that Faust pled guilty to, not how he
committed the particular crime. This focus is particularly
important in situations such as here where numerous of the Shepard
documents (indictment, model charging language and the clerk's
statement of what offense Faust was pleading guilty to) fail to
specify the type of assault and battery at issue and particularly
where the punishment received was in no way impacted by the type
of assault and battery to which Faust pled.18
18 In light of this latter fact, we would do well to remember the
caution the Supreme Court in Mathis and Descamps has given against
an overreliance on the factual statements contained in a plea
colloquy: "Statements of 'non-elemental fact' in the records of
prior convictions are prone to error precisely because their proof
is unnecessary." Mathis, 136 S. Ct. at 2253 (quoting Descamps,
133 S. Ct. at 2288). During a plea hearing "a defendant may have
-41-
We therefore remand to the district court for it to
determine which form of ABPO Faust necessarily pled guilty to. If
it was the intentional form, then his conviction for ABPO
categorically cannot count as a violent felony under the ACCA. If
it is plain that Faust pled guilty to the reckless form, however,
then the district court must determine whether reckless conduct
qualifies as the "use" of force under the ACCA. At this time we
decline to take a position on this question.19 Finally, if the
district court finds that it is unclear which form of ABPO Faust
pled guilty to, then his ABPO conviction cannot be used as a
predicate under the ACCA because the court's step three inquiry
utilizing Shepard documents will not have made plain what the
offense of conviction actually was.
V. Conclusion
For the foregoing reasons, we affirm the district
court's denial of Faust's motion to suppress and we vacate and
remand for resentencing proceedings consistent with this opinion.
Affirmed in part, Vacated and Remanded in part.
"Concurring opinions follows"
no incentive to contest what does not matter under the law; to the
contrary, he 'may have good reason not to'--or even be precluded
from doing so by the court." Id. (quoting Descamps, 133 S. Ct.
at 2289).
19 Tavares likewise left this question unanswered. 843 F.3d at
18-20.
-42-
LYNCH, Circuit Judge, concurring. I join that portion
of Judge Torruella's fine opinion affirming the judgment of
conviction and the order remanding the case, but not the discussion
of the sentencing issues concerning the two predicate state crimes.
I do agree that the case must be remanded to the district court
for a review of the Shepard documents newly produced on appeal by
the government. But I believe we should not address issues beyond
that remand for consideration of the Shepard documents by the
district court in the first instance.
The average person on the street would ordinarily think
that the state crime of assault and battery on a police officer
would meet the ACCA definition of crime of violence, that is "the
use, attempted use, or threatened use of physical force against
the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Other
circuits have noted that tension. See United States v. Harris,
844 F.3d 1260, 1262 (10th Cir. 2017) (noting that question of
whether robbery is a "violent felony" for ACCA "should be []
obvious," but that under the governing analysis, "the obvious may
not be so plain"). It is perfectly clear Congress intended
enhanced punishment to apply to recidivists whose prior crimes met
that definition. But in recent years the Supreme Court has issued
a series of decisions restructuring the analysis from one directly
addressed to Congressional intent, into a number of other tests.
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I do not question here that the sentencing portion of Judge
Torruella's opinion is faithful to those judicially created tests.
I do have doubts about the majority's holding as to several issues
I consider not to be necessary to the opinion. My doubts about
these matters do not prevent me from agreeing that the remand is
the correct outcome.
My concern is that use of these tests can lead courts to
reach counterintuitive results, and ones which are not what
Congress intended. Respected circuit judges share this concern.
See, e.g., United States v. Doctor, 842 F.3d 306, 313 (4th Cir.
2016) (Wilkinson, J., concurring) (observing that "the categorical
approach can serve as a protracted ruse for paradoxically finding
even the worst and most violent offenses not to constitute crimes
of violence" and that "too aggressively applied, [the categorical
approach] eviscerates Congress's attempt to enhance penalties for
violent recidivist behavior"), petition for cert. filed, 85
U.S.L.W. ___ (U.S. Mar. 17, 2017) (No. 16-8435).
The concern has also been expressed most eloquently by
several Justices of the United States Supreme Court. As Justice
Kennedy has said, "arbitrary and inequitable results produced by
applying an elements based approach . . . could not have been
Congress' intent." Mathis v. United States, 136 S. Ct. 2243, 2258
(Kennedy, J., concurring). In Mathis, Justice Breyer, joined by
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Justice Ginsburg, in dissent stated "[t]he elements/means
distinction that the Court draws should not matter for sentencing
purposes. I fear that the majority's contrary view will
unnecessarily complicate federal sentencing law, often preventing
courts from properly applying the sentencing statute that Congress
enacted." Id. at 2259 (Breyer, J., dissenting). And, also
dissenting in Mathis, Justice Alito, discussing the "modified
categorical" approach culminating in Descamps v. United States,
133 S. Ct. 2276 (2013), stated "[p]rogrammed in this way, the Court
set out on a course that has increasingly led to results that
Congress could not have intended." Id. at 2268 (Alito, J.,
dissenting).
I also agree with Justice Kennedy's hope for Congress to
"amend[] the ACCA to resolve these concerns," id. at 2258 (Kennedy,
J., concurring), as well as other concerns, including avoidance of
racially disparate results, which have been highlighted in efforts
at sentencing reform. See Seung Min Kim, Senators Plan to Revive
Sentencing Reform Push, Politico (Jan. 4, 2017, 5:13 AM),
http://www.politico.com/story/2017/01/senate-criminal-justice-
sentencing-reform-233071; Bill Keller, Will 2017 Be the Year of
Criminal Justice Reform?, N.Y. Times (Dec. 16, 2016),
http://www.nytimes.com/2016/12/16/opinion/will-2017-be-the-year-
of-criminal-justice-reform.html.
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BARRON, Circuit Judge, with whom TORRUELLA, Circuit
Judge, joins, concurring. I fully agree with this excellent
majority opinion. I write separately to add these thoughts about
the growing sentiment that Congress could not have intended for us
to apply the increasingly complicated framework that the Supreme
Court now requires us to apply in order to determine the scope of
the Armed Career Criminal Act (ACCA). In my view, this line of
criticism rests on a mistaken premise.
I do not doubt that Congress may have failed to foresee
how hard it would be to identify those offenders who, by dint of
their past violence, must automatically be subject to the severe
sentencing enhancement that ACCA imposes. I do doubt that Congress
wanted us to ignore the reality that such a task is a hard one if,
in reality, it is. And, experience has shown, that task is hard.
For that reason, I think it is important to review Congress's own
role in leading us down this complicated jurisprudential path,
which has lately come in for such criticism. That review
highlights to me a number of too-easily overlooked problems that
the Supreme Court's current framework for applying ACCA manages to
avoid but that otherwise might arise.
I.
First, I realize that the counterintuitive results
sometimes produced by the categorical approach may appear to be
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ones that Congress could not possibly have intended, especially
given what often appears to be the violent nature of the underlying
conduct of the defendant. We should not lose sight of the fact,
however, that often "[t]he best indication of Congress's
intentions . . . is the text of the statute itself." S. Port
Marine, LLC v. Gulf Oil Ltd. P'ship, 234 F.3d 58, 65 (1st Cir.
2000). And the text of ACCA indicates that Congress did want us
to focus on the offense of conviction rather than on the conduct
that the defendant engaged in while committing the offense for
which he was ultimately convicted. As the Court has observed,
ACCA expressly makes the defendant's "conviction" the trigger for
the enhancement and makes no reference to "conduct." 18 U.S.C.
§ 924(e)(1) ("In the case of a person who violates section 922(g)
of this title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent felony
or a serious drug offense . . . ." (emphasis added)); Mathis v.
United States, 136 S. Ct. 2243, 2252 (2016).
Second, and relatedly, ACCA's text expressly tells us
that, in focusing on the "conviction," we should not focus on the
label that the state legislature may have given to the underlying
criminal offense -- no matter how violent-sounding that label may
be. In denominating crimes of violence, Congress has said nothing
about the labels that states have given to offenses. Congress
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instead has referred only to the actual elements of the offense.
Specifically, Congress, in the definition of "violent felony,"
expressly orients us to the elements of the predicate crime: "any
crime . . . that [] has as an element the use, attempted use, or
threatened use of physical force against the person of another[.]"
18 U.S.C. § 924(e)(2)(B) (emphasis added).
In light of these aspects of ACCA's plain text, it seems
to me that the case is actually quite strong for concluding that
Congress, by writing ACCA the way that it did, intended for us to
adopt the focus reflected in the extended line of Supreme Court
cases that establishes the categorical approach. After all, there
are good reasons to privilege the "conviction" and the "elements"
that comprise that conviction over either the label that a state
legislature may have given to the offense or the nature of the
defendant's conduct in committing the underlying offense. As the
Court has observed, such a categorical -- some might say,
abstract -- focus for the inquiry avoids some very real problems
that otherwise would arise.
It must be remembered in this regard that the label that
a state legislature gives to a criminal offense is not necessarily
a good guide for determining whether a conviction is for a violent
act. That label is, in many ways, no different from a statute's
title. As such, that label is often a poor proxy for the substance
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of the underlying legislation. For that reason, there is good
reason to be wary of giving an offense's violent-sounding label
much interpretive weight -- at least when the label does not
reflect the fact that the elements of the offense clearly encompass
non-violent conduct. See Bhd. of R. R. Trainmen v. Baltimore &
O. R. Co., 331 U.S. 519, 528–29 (1947) ("[T]he title of a statute
and the heading of a section cannot limit the plain meaning of the
text.").
To be sure, Congress, in focusing on the "conviction"
rather than on the defendant's conduct and on the "elements" of
the conviction rather than on its label, may not have expected for
there to be as much of a mismatch as there often turns out to be
between the label that a state gives to a crime and the elements
of that crime. For example, Congress apparently envisioned that
the generic offense of "assault" would qualify as a violent felony
under what is known as ACCA's force clause, on the thought that
the underlying conduct would invariably be violent. See H.R. Rep.
No. 99-849, at 3 (1986) (suggesting that the list of "violent
felonies under Federal or State law . . . would include such
felonies involving physical force against a person such as murder,
rape, assault, robbery, etc.").
But, I do not think Congress's possible misapprehension
about the actual elements of a crime that bears an indisputably
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violent-sounding moniker supplies a reason for us to conclude that
Congress wanted us to ignore the reality that the elements of the
crime of conviction often actually cover non-violent conduct. See
Popal v. Gonzales, 416 F.3d 249, 254 n.5 (3d Cir. 2005) ("In short,
we recognize that our holding today might seem to conflict with
Congress's intent as expressed in the legislative history of § 16.
But we believe that this apparent conflict is a mirage, caused by
the fact that Pennsylvania has chosen to classify as simple assault
offenses that the congressional drafters were unlikely to have had
in mind."). In fact, the crimes at issue in this case demonstrate
this mismatch between the level of violence implied by the title
of the crime and the level of violence required to commit the
crime. Stiffening one's arm to avoid arrest qualifies as resisting
arrest, Commonwealth v. Grandison, 741 N.E.2d 25, 35 (Mass. 2001),
and an offensive touching, even if slight, qualifies as assault
and battery, Commonwealth v. Cohen, 771 N.E.2d 176, 177 (Mass.
App. 2002). And, even the government appears to accept that such
conduct is not "violent" within the meaning of ACCA.
A state's choice to expand the scope of its crimes to
encompass both violent and non-violent conduct may make great sense
in terms of state policy. It certainly makes it easier for state
and local prosecutors to make their cases. But a state, in so
acting, is not attempting to ensure what Congress is attempting to
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ensure through ACCA -- that armed, repeat, violent offenders are
treated especially harshly. Rather, a state that enacts a broad
assault or robbery statute is just attempting to ensure that anyone
who falls with the scope of that state-defined crime may be
punished for that particular crime, broadly defined as it is. As
a result, there is no reason to think that Congress would have
wanted us to rely on state criminal law labels -- when they
oversell the actual nature of the prohibited conducted that juries
must actually find the defendant to have engaged in -- to implement
Congress's attempt through ACCA to single out that class of
criminals who are repeatedly violent and thus must be specially
punished in consequence. And thus there is no reason to think
that, in directing us to look to the elements of state law crimes,
Congress, in writing ACCA, did not mean what it said.
Of course, a direct focus on a defendant's actual conduct
could, in theory, solve the "problem" that arises from the frequent
mismatch between a crime's name and a crime's elements.
Sometimes, perhaps often, assaults are violent, even though a jury
need not find them to be so in order to convict. But, it must
also be remembered that, if the defendant's conduct alone mattered,
then some very real problems still would arise.
For one thing, as the Court has pointed out, a
characterization of the defendant's conduct by a federal judge
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made well after the conviction could violate a defendant's Sixth
Amendment rights if that characterization would increase the
maximum penalty faced by the defendant. Mathis, 136 S. Ct. at
2252. Why, then, should we assume that Congress wished for us to
focus on that conduct in applying ACCA, given that it would
increase that maximum penalty? Haven't we long construed statutes
to avoid constitutional problems rather than to create them, on
the understanding (however fictional it may sometimes be) that
Congress is not in the habit of pushing constitutional bounds?
There is also another reason to think that Congress
directed us to focus on the "conviction" and its "elements" rather
than on the defendant's underlying conduct in order to avoid a
problem that might arise if the focus were on conduct. As the
Court has observed, a federal judge's characterization of a crime
as a violent one could be quite unfair to a defendant if it were
based only on a years-later review of a defendant's conduct that
is, in turn, based only on agreed-upon facts that were adduced at,
say, a plea colloquy.
After all, at the time that a defendant decides to plead
guilty to a state crime, the defendant would likely have no real
notice of the potentially severe federal consequences of a decision
not to challenge the state's characterization of the defendant's
underlying conduct. Id. at 2253. For example, the first-time
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offender cannot be presumed to know that he will later commit two
additional state crimes and a federal firearms offense, but it is
only after those crimes are committed that the first crime's
violent nature becomes relevant. Thus, a federal district court's
reliance on the description of the conduct from the plea colloquy,
despite that lack of notice, could therefore raise serious due
process concerns if the district court did not also give the
defendant an opportunity to contest that description of the
conduct.
Nor would that notice problem be efficiently solved by
affording the defendant an opportunity to contest that description
in the federal sentencing proceedings. That approach would invite
a mini-trial about the facts of the prior offense years or decades
after the fact. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1690
(2013) ("The categorical approach . . . promotes judicial and
administrative efficiency by precluding the relitigation of past
convictions in minitrials conducted long after the fact."). It
is hard to make the categorical approach look like an efficient
way of determining which offenses qualify as predicate offenses.
A conduct-based approach that, in order to protect the due process
interests of the defendant, necessitated searching retrospective
inquiries into long-since-passed state court proceedings might
well accomplish that seemingly impossible feat.
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I suppose that an alternative, more conduct-based
framework could, in time, become well known enough to defendants
that, in response, they would begin routinely to take care in their
state court proceedings to protect themselves from the potential
future impact of ACAA. But, even if that quite speculative
possibility came to pass, it would give rise to a serious problem
of its own.
Such a reaction by defendants to a revised, conduct-
focused framework could seriously disrupt the dynamics of the state
criminal process, both in plea-bargaining and in trials. The
concern would be that, under such a revised legal framework,
defense counsel, in developing a record for plea or trial, would
no longer focus solely on what would appear to be the state's only
concern: the guilt or innocence of the defendant for the crime
for which the defendant was then being prosecuted. Instead, the
focus would also be on the federal government's hypothetical future
interest in assessing how dangerous the defendant's underlying
conduct was.
But that focus would interfere with the state's goals in
legislating crimes to contain elements that sweep in non-violent
conduct. After all, a state may have chosen to group together
both violent and non-violent conduct under a particular label
precisely because it did not want the criminal proceedings to focus
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on whether the conduct in which the defendant engaged was violent
or not. In this way, then, a concern solely of the federal
government's -- identifying repeat violent offenders -- would
distort state court criminal proceedings that, by design, seek to
make the violent nature of the conduct irrelevant.
Indeed, a version of this federalism concern seemed to
be one that Congress took quite seriously in drafting ACCA.
Congress rejected, on federalism grounds, initial legislative
plans to formulate an alternative to this enhancement for fear
that -- by creating a federal crime of robbery and burglary and
the like -- the federal government would displace the state
criminal process. See H.R. Rep. No. 99-849, at 3 (noting that the
House Subcommittee on Crime "delet[ed] . . . specific predicate
offenses . . . and added as predicate offenses . . . violent
felonies under Federal or State law if the offense has as an
element the use, attempted use, or threatened use of physical force
against a person" (emphasis in original)). Thus, the Court's
current categorical approach -- by attending to the textual
directives to focus on the "conviction" and the "elements" of the
offense -- has the virtue of ensuring that ACCA does not give rise
to a version of the federalism-based concern about respecting the
primacy of state criminal law over a broad range of crimes that we
know Congress took quite seriously in crafting ACCA as it did.
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II.
Ordinarily, there is good reason to assume that Congress
does not intend to enact criminal punishment schemes that are
overly complicated. Such complicated schemes may fail to provide
defendants with sufficient notice of the consequences of their
actions. But the body of jurisprudence that has emerged from Taylor
through Mathis does not give rise to this notice-based concern.
The complexity of the categorical approach, as it has
developed, is undeniable. This case makes that perfectly clear.
But, as this case also demonstrates, in practice, that complexity
serves to narrow the scope of this mandatory sentencing
enhancement, at least as compared to the breadth that it might
otherwise have. Thus, the current categorical approach respects
-- rather than violates -- the notice-protecting principle of
lenity that we have long presumed that Congress has in mind when
it imposes severe criminal punishment.
Perhaps, insofar as such an enhancement remains in
place, there is some alternative to the categorical framework that
Congress might adopt that would be superior to the one that the
Supreme Court, based on the text of ACCA, requires us to
administer. I do not deny that such a framework might be
discovered. I do think, though, that we should not discount the
very legitimate concerns that led Congress to direct us to focus
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on the "conviction" and its "elements" -- rather than on the
defendant's conduct or on statutory labels -- in drafting ACCA.
And I think it important, as well, to highlight the related and
quite sensible assumptions that have led the Court to interpret
ACCA -- and the directive Congress wrote into it -- as it has.
The categorical approach is difficult to apply. And its
application may in many cases seem to exclude from ACCA's reach
defendants whose past records appear to be violent ones. But, the
simple fact is that it is hard to devise a system for identifying
those individuals who as a class -- and thus regardless of
particular circumstances that could be evaluated through
individualized sentencing -- must be sentenced very harshly
because of the violence that they have perpetrated in the past.
It is thus important, it seems to me, not to lose sight of the
significant ways in which the categorical approach, for all of its
faults, reflects respect both for due process and federalism.
Otherwise, we may find ourselves, in time, administering a revised
framework that, though supposedly improved, actually creates
problems more serious than those that it sought to solve.
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