United States v. Barbosa , 896 F.3d 60 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1284
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN A. BARBOSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
Anthony E. Fuller, with whom Alexandra G. Watson and Hogan
Lovells US LLP were on brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
July 16, 2018
SELYA, Circuit Judge. This appeal resembles a play in
two acts. The first act deals with whether the district court
erred in refusing to order a pretrial hearing to test the
sufficiency of the probable cause allegations undergirding an
arrest warrant. The second act deals with whether the district
court erred in classifying the defendant as an armed career
criminal and sentencing him under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). As the final curtain descends, we
find it manifest that the district court erred in neither respect.
Accordingly, we affirm the defendant's conviction and sentence.
I. BACKGROUND
We rehearse the relevant facts, which are largely
undisputed (even though the parties fiercely contest the
inferences to be drawn from those facts). In the early afternoon
of Saturday, August 8, 2015, Jillian Poeira and her mother Ana
Poeira walked into a police station in New Bedford, Massachusetts,
to file a report implicating defendant-appellant John A. Barbosa.
Jillian and the defendant had lived together (with Jillian's two
children from a previous relationship) before parting ways in
January of 2015. Following the break-up, Jillian and her children
moved in with Jillian's parents.
When Jillian and Ana arrived at the police station on
August 8, they spoke to a New Bedford police officer, Gregory
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Sirois, and described certain events that had transpired earlier
that morning. According to the application for a criminal
complaint (the Application), completed and signed that afternoon
by Officer Sirois,1 the two women reported that, around 7:00 a.m.,
the defendant appeared unexpectedly at their home. Ana answered
the door, and the defendant pushed his way inside and demanded to
speak to Jillian. Officer Sirois wrote in the Application that
"Ana Poeira pushed [the defendant] against the wall and held him
there and as she did he raised a black firearm into the air and
pointed it [at] both females," threatening to kill everyone in the
house. The Application went on to relate that the altercation
ended after Ana "managed to push [the defendant] back out the
door." The defendant then departed.
Officer Sirois asked the women why they had waited nearly
six hours to report the incident. Jillian responded that she was
scared, and Ana added that she had a doctor's appointment that
morning. The officer then checked for any outstanding warrants
concerning either Jillian or the defendant but found none. He
did, however, find an extensive Board of Probation record for the
defendant, which revealed a number of "firearms charges and other
violent crimes."
1
Unless otherwise specifically indicated, all of the facts
occurring prior to the issuance of the arrest warrant were
memorialized in the Application.
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Officer Sirois proceeded to assist Jillian in preparing
a complaint for an emergency restraining order against the
defendant. In support, Jillian wrote and signed an affidavit (the
text of which was not included verbatim in the Application), in
which she described the August 8 incident in her own words. The
affidavit stated that the defendant had arrived at the house
between 8:00 a.m. and 9:00 a.m. When the defendant knocked and
asked to speak with Jillian, Ana opened the door only a crack and
told the defendant that Jillian had nothing to say to him.
According to Jillian's affidavit, the defendant pushed his way
into the house as Ana tried to hold him back; Jillian's four-year-
old son yelled that the defendant had a gun; and Jillian — who had
been about to call 911 — dropped the phone and ran to help her
mother push the defendant out the door. As the defendant left, he
told Jillian that if she called the police, he would kill everyone
in the house.
Jillian told Officer Sirois that the defendant drove a
gray Volvo and frequented the New Bedford public library. The
officer confirmed that a gray Volvo was registered in the
defendant's name and put out a "be on the look out" notice for the
car.
Two days later, detectives from the New Bedford Police
Department followed up on the complaint against the defendant.
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They confirmed that an arrest warrant had been issued on a charge
of armed home invasion — a warrant premised on the Application.
See Mass. Gen. Laws ch. 265, § 18C. That afternoon, the police
executed the arrest warrant at the public library and took the
defendant into custody. During the arrest, they seized a bag
containing a firearm and ammunition.
On November 12, 2015, a federal grand jury sitting in
the District of Massachusetts returned a single-count indictment
charging the defendant with being a felon in possession of a
firearm and ammunition. See 18 U.S.C. § 922(g)(1). In due season,
the defendant moved to suppress the firearm and ammunition found
in his possession. He alleged, inter alia, that the arrest warrant
had been issued without a sufficient showing of probable cause and
that the firearm and ammunition were fruits of the allegedly
unconstitutional warrant. The government opposed the motion, and
the district court denied it. See United States v. Barbosa, 2016
WL 3976559, at *1 (D. Mass. July 22, 2016). Undaunted, the
defendant moved for a Franks hearing, see Franks v. Delaware, 438
U.S. 154, 155-56 (1978), seeking an opportunity to challenge the
underpinnings of the arrest warrant in a pretrial proceeding. The
district court denied this motion as well. See United States v.
Barbosa, 2016 WL 6609174, at *1 (D. Mass. Nov. 7, 2016).
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On December 19, 2016, the defendant entered a
conditional guilty plea, see Fed. R. Crim. P. 11(a)(2), reserving
his right to appeal both the district court's denial of his motion
to suppress and its denial of his motion for a Franks hearing.
Following the defendant's guilty plea, the probation department
prepared a presentence investigation report recommending that the
defendant be sentenced as an armed career criminal under the ACCA.
In support, the probation department represented that the
defendant, in the idiom of the ACCA, had at least three prior
convictions for "violent felon[ies]" and/or "serious drug
offense[s]." 18 U.S.C. § 924(e). The probation department
identified four Massachusetts convictions — a 1993 conviction for
possession with intent to distribute a controlled substance; a
1995 conviction for assault with a dangerous weapon (ADW); a 2000
conviction for possession with intent to distribute a controlled
substance; and a 2007 conviction for armed assault with intent to
murder (AAIM) — as potential predicate offenses. Classification
as an armed career criminal had potentially unattractive
consequences for the defendant: the ACCA requires a mandatory
minimum fifteen-year term of incarceration for persons who have at
least three qualifying convictions for predicate offenses. See
id. § 924(e)(1).
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At sentencing, the district court determined that the
defendant's 1993, 1995, and 2000 convictions comprised convictions
for ACCA predicate offenses.2 Classifying the defendant, over his
objection, as an armed career criminal, the court sentenced him to
a fifteen-year term of immurement. This timely appeal followed.
II. ANALYSIS
In this venue, the defendant, ably represented, does not
directly challenge the district court's denial of his motion to
suppress. He does challenge, though, the court's denial of his
motion for a Franks hearing. In addition, he challenges his
classification as an armed career criminal and, thus, his sentence.
We bifurcate our analysis, first addressing the defendant's Franks
claim and then addressing his claim of sentencing error.
A. Franks Hearing.
We start with the defendant's challenge to the denial of
his motion for a Franks hearing. In reviewing such an order, we
appraise the district court's factual findings for clear error and
evaluate its legal conclusions de novo. See United States v.
Patterson, 877 F.3d 419, 424 (1st Cir. 2017); United States v.
2 The district court also found — over the government's
objection — that the defendant's 2007 AAIM conviction did not
qualify as an ACCA predicate-offense conviction. In fairness to
the district court, we note that it made this determination prior
to our decision in United States v. Edwards, 857 F.3d 420, 427
(1st Cir.) (holding that AAIM constitutes a violent felony under
the ACCA), cert. denied 138 S. Ct. 283 (2017).
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Arias, 848 F.3d 504, 511 (1st Cir. 2017). The district court's
findings of fact will be deemed clearly erroneous if — and only
if — a reviewing court, after considering all of the evidence, "is
left with the definite and firm conviction that a mistake has been
committed." Anderson v. City of Bessmer, 470 U.S. 564, 573 (1985)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)).
The Fourth Amendment provides that "no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation."
U.S. Const. amend. IV. In Massachusetts, police officers need not
submit an affidavit in support of an arrest warrant. See Burke v.
Town of Walpole, 405 F.3d 66, 78 (1st Cir. 2005) (describing
procedure). Instead, they may submit an application for a criminal
complaint, which must reduce to writing the facts supporting
probable cause. See Mass. Gen. Laws ch. 276, § 22. The ensuing
arrest warrant must nonetheless be signed by the official issuing
it, see Mass. R. Crim. P. 6(b), and that signature satisfies the
Fourth Amendment's oath or affirmation requirement, see Burke, 405
F.3d at 78-79. Here, the arrest warrant was initialed by a judge
of the New Bedford District Court, and the defendant has not
challenged the sufficiency of the oath or affirmation on appeal.
Beyond the oath or affirmation, the Fourth Amendment
demands that an application for an arrest warrant contain
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sufficient information to allow the issuing official — whom, for
ease in exposition, we shall call "the magistrate" — to "make a
practical, common-sense decision whether, given all the
circumstances set forth in the [application] before him . . . there
is a fair probability" that a crime has been committed. Illinois
v. Gates, 462 U.S. 213, 238 (1983). An application "supporting a
. . . warrant is presumptively valid." United States v. Gifford,
727 F.3d 92, 98 (1st Cir. 2013). Under certain circumstances,
however, a defendant may be able "to rebut this presumption and
challenge the veracity" of the warrant application at a pretrial
hearing. United States v. McLellan, 792 F.3d 200, 208 (1st Cir.
2015). Such a hearing is eponymously called a Franks hearing.
See, e.g., id.; United States v. Hicks, 575 F.3d 130, 135-36 (1st
Cir. 2009).
The Franks Court held that if a defendant can show, by
a preponderance of the evidence, that there were false statements
included in the warrant affidavit and that, with the "false
material set to one side, the affidavit's remaining content is
insufficient to establish probable cause, the . . . warrant must
be voided and the fruits . . . excluded to the same extent as if
probable cause was lacking on the face of the affidavit."3 438
3 Although Franks dealt with an affidavit in support of a
search warrant, the same principles apply to an application in
support of an arrest warrant where the application serves the same
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U.S. at 156. Even so, a defendant is not entitled to a Franks
hearing as of right.
Instead, he must make a threshold showing sufficient to
persuade the district court that a reasonable basis exists for
believing that such a hearing is indicated. See United States v.
Gordon, 871 F.3d 35, 51 (1st Cir. 2017); Arias, 848 F.3d at 510-
11. A defendant who makes an adequate threshold showing is
entitled, on timely motion, to a pretrial determination. See
Arias, 848 F.3d at 511; United States v. Graf, 784 F.3d 1, 3 (1st
Cir. 2015).
We described this threshold showing in United States v.
Tanguay (Tanguay I):
In Franks, the Supreme Court established that,
under the Fourth and Fourteenth Amendments, a
defendant is entitled to an evidentiary
hearing to test the veracity of a warrant
affidavit if he can make a substantial showing
that the affiant intentionally or with
reckless disregard for the truth included a
false statement in the affidavit, which
statement was necessary to the finding of
probable cause. See 438 U.S. at 155-56, 98 S.
Ct. 2674. Suppression of the evidence seized
is justified if, at such a hearing, the
defendant proves intentional or reckless
falsehood by preponderant evidence and the
affidavit's creditworthy averments are
insufficient to establish probable cause. See
id. at 156, 98 S. Ct. 2674.
function as an affidavit. See United States v. Laurent, 607 F.3d
895, 903 (1st Cir. 2010); United States v. Colkley, 899 F.2d 297,
299-302 (4th Cir. 1990).
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Material omissions from a warrant
affidavit also may furnish the basis for a
successful Franks challenge. See United
States v. Hadfield, 918 F.2d 987, 992 (1st
Cir. 1990). The required showing is two-fold:
first, the omission must have been either
intentional or reckless; and second, the
omitted information, if incorporated into the
affidavit, must be sufficient to vitiate
probable cause. See United States v.
Castillo, 287 F.3d 21, 25 & n.4 (1st Cir.
2002); see also United States v. Tate, 524
F.3d 449, 456-57 (4th Cir. 2008) ("A
'literally true' affidavit . . . can be
intentionally misleading if it deliberately
omitted material facts which, when included,
would defeat the probable cause showing and
thus render false the original 'literally
true' affidavit."). Because there is no
requirement that every shred of known
information be included in a warrant
affidavit, the omission of a particular
detail, without more, is not enough to satisfy
the mens rea element of the Franks test. See
United States v. Colkley, 899 F.2d 297, 300-
01 (4th Cir. 1990). Rather, an omission
triggers the exclusionary rule only if it is
"designed to mislead, or . . . made in reckless
disregard of whether [it] would mislead, the
magistrate" in his appraisal of the affidavit.
Id. at 301 (emphasis omitted).
Recklessness may be inferred directly
from the fact of omission only if "the omitted
information was critical to the probable cause
determination." Burke v. Town of Walpole, 405
F.3d 66, 81 (1st Cir. 2005) (emphasis
supplied) (internal quotation mark omitted).
Negligent omissions — even negligent omissions
of highly probative information — do not
satisfy this strict standard. See Franks, 438
U.S. at 171, 98 S. Ct. 2674; see also United
States v. Melvin, 596 F.2d 492, 499-500 (1st
Cir. 1979) (affirming finding that omission of
key witness's recantation was merely
negligent, not reckless, because of affiant's
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good-faith belief that recantation was
incredible).
Tanguay I, 787 F.3d 44, 48-49 (1st Cir. 2015).
Against this backdrop, we turn to the defendant's
attempt to persuade the district court (and, now, this court) that
he has made a threshold showing sufficient to entitle him to a
Franks hearing. To begin, the defendant argues that Officer Sirois
intentionally or recklessly made false statements in the
Application and, in the bargain, omitted several clusters of
material information. He further argues that these false
statements and material omissions were so portentous as to
dissipate any showing of probable cause. Specifically, the
defendant notes that Officer Sirois understated the defendant's
weight by 40 pounds; omitted Ana's age; omitted any reference to
Jillian's statement (made in her affidavit in support of her
request for a restraining order) that Ana and the defendant were
pushing each other; and neglected to mention that Ana willingly
opened the door for the defendant. Had the Application been
accurate and complete, the defendant submits, it would have
presented the magistrate with a truly implausible tale: that a
59-year-old grandmother invited an armed man who was younger,
stronger, and heavier into her home and — when he turned violent
— was able to overpower him and force him out the door. Given the
implausibility of this scenario, the defendant insists that a
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reasonable magistrate could not have found probable cause to
believe that an armed home invasion had transpired.
There is, however, a rather large fly in the ointment.
Even if we assume that the challenged statements and omissions
were either deliberate or reckless — a matter that we need not
reach — it is clear that correcting the defendant's weight and
adding in the omitted information would not have vitiated the
finding of probable cause. Neither the alleged misstatement about
the defendant's weight nor the omitted information was critical to
the finding of probable cause. We explain briefly.
Let us say, for argument's sake, that we accept the
defendant's premise: the notion that a 59-year-old grandmother
could have overpowered a younger, stronger man (6'1" in height,
weighing 180 pounds, and brandishing a gun) seems hard to swallow.
Even so, this premise lacks any bite because it rests on a
misreading of the Application.
To gauge the sufficiency of the Application, we must
determine whether the totality of the revealed circumstances makes
out a showing of probable cause, even with false facts stripped
away, inaccurate facts corrected, and omitted facts included. See
id. at 49-50; Hicks, 575 F.3d at 138-39. As applied here, this
approach requires that the Application be reformed to show the
defendant's correct weight (approximately 180 pounds), Ana's age
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(59), and the fact that the two were pushing each other. But even
with these emendations, the totality of the circumstances
disclosed in the Application remains sufficient to establish
probable cause to believe that an armed home invasion had taken
place.
At bottom, the defendant's claim is that no reasonable
magistrate would have believed Jillian's and Ana's accounts
because it is implausible to think that Ana overpowered the
defendant. But this claim frames the question in the wrong way.
Taking the Application's factual content as a whole, the age and
weight disparity between Ana and the defendant, even when coupled
with the fact that they were "pushing each other," does not imply
that Ana physically overpowered the defendant. The incremental
facts, without more, simply do not compel a reasonable inference
that the defendant was resisting Ana with any degree of force.
Far from being implausible, the Application — even when reformed
to meet the defendant's objections about false statements and
material omissions — would continue to give a reasonable magistrate
probable cause to believe that the events transpired as Ana and
Jillian had described them.
In reaching this conclusion, we are mindful that an
inquiry into the existence vel non of probable cause invariably
hinges on the facts and circumstances of each particular case.
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See B.C.R. Transp. Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir. 1984).
Nevertheless, some generalities apply. One such generality is the
recognition that "probable cause determinations predicated on
information furnished by a victim are generally considered to be
reliable." Id. In other words, a magistrate may justifiably rely
on victims' credible accounts to support a finding of probable
cause. See Forest v. Pawtucket Police Dep't, 377 F.3d 52, 57 (1st
Cir. 2004); cf. United States v. Campbell, 732 F.2d 1017, 1019
(1st Cir. 1984) (finding officer justifiably relied on statement
of private citizen who came forward on his own). So it is here.
The short of it is that the putative discrepancies on
which the defendant relies "are tangential." United States v.
Ranney, 298 F.3d 74, 78 (1st Cir. 2002). The correction of the
alleged factual inaccuracies and the inclusion of the omitted
facts, taken together, do not dispel the reasonable inference of
probable cause to believe that the defendant had committed an armed
home invasion.
Of course, there is one further allegedly omitted fact:
the defendant claims that the Application improperly glosses over
the fact that Ana willingly opened the door, knowing that the
defendant was on the other side. The omission of this fact is
material, the defendant says, because its inclusion would show
that the elements of armed home invasion were not satisfied. In
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support, the defendant declares that an armed home invasion
requires that the initial entry into the home be unlawful or, at
least, nonconsensual — a requirement that, in his view, could not
be satisfied so long as Ana willingly opened the door to allow the
defendant entry.
The defendant is whistling past the graveyard. His
description of the elements of armed home invasion misapprehends
Massachusetts law, which does not make unlawful or non-consensual
entry an element of the offense of armed home invasion.4 The
defendant's contrary argument rests squarely on the decision in
Commonwealth v. Putnam, 914 N.E.2d 969 (Mass. App. Ct. 2009). That
case, however, cannot support the weight that the defendant piles
upon it.
With respect to the crime of armed home invasion, Putnam
makes pellucid that "[p]urported consent [to entry] cannot be
considered legally significant unless the occupant has been made
aware that the person at the door is armed with a dangerous weapon
and is about to commit an assault once inside." Id. at 973 (quoting
4 Under Massachusetts law, armed home invasion has four
elements: "the defendant (1) 'knowingly entered the dwelling place
of another'; (2) 'knowing or having reason to know that one or
more persons are present within'; (3) 'while armed with a dangerous
weapon'; and (4) 'used force or threatened the imminent use of
force upon any person within such dwelling place . . . .'"
Commonwealth v. Doucette, 720 N.E.2d 806, 809 (Mass. 1999) (quoting
Mass. Gen. Laws ch. 265, § 18C) (alterations omitted).
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Commonwealth v. Mahar, 722 N.E.2d 461, 469 (Mass. 2000)). Here,
there is no evidence that Ana knew either that the defendant was
armed or that he was about to commit an assault when she opened
the door for him. Thus, the fact that Ana willingly opened the
door was not in any way "critical to the probable cause
determination." Tanguay I, 787 F.3d at 49 (emphasis in original)
(quoting Burke, 405 F.3d at 81).
The defendant has a fallback position: he challenges
the denial of a Franks hearing on the basis of what he maintains
is Officer Sirois's unjustified failure to conduct a fuller
investigation. This failure, the defendant says, occurred despite
"obvious reasons" to doubt the story told by Jillian and Ana. This
claim does not withstand scrutiny.
As a general rule, a police officer planning to apply
for a warrant has no duty to "investigate a matter fully." Id. at
51. Nor is a police officer — as a condition precedent to procuring
a warrant — compelled "to 'exhaust every possible lead, interview
all potential witnesses, and accumulate overwhelming corroborative
evidence.'" Id. (quoting Beard v. City of Northglenn, 24 F.3d
110, 116 (10th Cir. 1994)). When an officer has no plausible
reason to doubt the veracity of the information that he plans to
include in the warrant application, a failure to take further steps
to verify that information is not reckless. See id. at 52.
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To be sure, this "general rule — like virtually every
general rule — admits of at least one exception." Id. In Tanguay
I, we held that, in limited circumstances, a right to a Franks
hearing may arise out of an officer's failure to include in a
warrant application facts not known to her at the time but which
would have been discovered had she investigated further. See id.
To pave the way for this exception, though, the officer must have
had "obvious reasons" to doubt either the veracity of the
allegations or the credibility of the person making the allegations
— doubts of "such a magnitude that her failure to conduct an
additional inquiry evinced a reckless disregard for the truth."
Id. at 54. Faced with such a "red flag," an officer may (depending
on the circumstances) have a duty to investigate further before
applying for a warrant. Id. at 53. We caution, however, that
even where such a duty is found to exist, an inquiring court must
take an additional step before ordering a Franks hearing: it must
find that the application, expanded to include new information
that likely would have been uncovered with additional
investigation, would no longer support a finding of probable cause.
See id. at 54.
This is a difficult row to hoe and the defendant barely
scratches the surface. Fairly read, the record contains nothing
to suggest that Officer Sirois should have entertained obvious
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doubts about either the credibility of the victims (Jillian and
Ana) or the veracity of their eyewitness accounts. Struggling to
cultivate a contrary conclusion, the defendant asserts that two
red flags should have caused Officer Sirois to doubt the victims'
truthfulness. The officer's failure to pursue the leads suggested
by those flags, the defendant adds, amounted to a reckless
disregard for the truth.
In our review, these flags are more beige than red. The
first flag envisioned by the defendant is the spectacle of a 59-
year-old grandmother overpowering a younger, stronger, and heavier
armed man — a spectacle so implausible that it should have created
obvious doubts, requiring further investigation. But as we already
have explained, this reads into the Application more than can be
found within its four corners: there was nothing in the facts
known to Officer Sirois suggesting that Ana physically overpowered
the defendant. Thus, the disparities in age, size, and the like
provided no reason at all — let alone an obvious reason — to doubt
the victims' accounts.
The second flag envisioned by the defendant is the
temporal gap that existed between the occurrence of the home
invasion and the victims' reporting of that incident to the police.
This delay of five or six hours, the defendant asserts, should
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have raised obvious doubts about the victims' credibility. We do
not agree.
The record makes manifest that Officer Sirois did not
overlook the delayed reporting. Rather, he took note of it and
questioned the victims about the delay when they described the
incident to him. Jillian stated that she was afraid to report the
incident, and Ana stated that she did not report it earlier because
she had an intervening doctor's appointment. On their face, both
of these explanations were plausible. Jillian had ample reason to
be scared given the defendant's threat to kill everyone in the
house if she went to the police. Ana heard the same menacing words
and, in any event, her desire to keep a scheduled medical
appointment was not itself so out of the ordinary as to be
suspicious.5
Seen in this light, the question reduces to whether
something about the delay in reporting, even when plausibly
5
The defendant's reliance on Winzer v. Hall, 494 F.3d 1192
(9th Cir. 2007), is misplaced. He invokes that opinion for the
proposition that statements made contemporaneously with the
occurrence of an event are more reliable than statements made hours
after the event. See id. at 1199-1200. This proposition may be
self-evident, but in this case it does no more than set up a straw
man: whether a statement can be sufficiently reliable to be
admissible at trial is an entirely different question than whether
a witness's statement can be relied upon to support a finding of
probable cause. Cf. United States v. Jordan, 999 F.2d 11, 13-14
(1st Cir. 1993) ("Hearsay statements, like those of . . . the
informant, often are the stuff of . . . warrant affidavits.").
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explained, sufficed to create obvious doubts about the reliability
of the victims' accounts. The district court answered this
question in the negative, and we do not regard that answer as
clearly erroneous. See United States v. Guzmán-Batista, 783 F.3d
930, 938 (1st Cir. 2015) (stating that "a district court's choice
between two plausible competing interpretations of the facts
cannot be clearly erroneous" (citation omitted)).
That is game, set, and match. With the delay plausibly
explained to the officer's satisfaction, the Application contains
no meaningful indicia of unreliability. Two victims gave coherent
accounts, which were substantially similar and mutually
reinforcing. Moreover, Officer Sirois was able to verify some of
the information provided by Jillian (such as the defendant's use
of a gray Volvo). Such corroboration weighs in favor of a police
officer's decision to treat an informant as a reliable witness.
See United States v. Flores, 888 F.3d 537, 544 (1st Cir. 2018).
Taking the circumstances as a whole, Officer Sirois had no obvious
reason to doubt Jillian's or Ana's veracity and, thus, his failure
to conduct any further investigation before applying for an arrest
warrant did not demonstrate a reckless disregard for the truth.
See Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 10 (1st Cir.
2004) (concluding that "[i]n the absence of circumstances that
would raise a reasonably prudent officer's antennae . . . [t]he
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uncorroborated testimony of a victim . . . standing alone,
ordinarily can support a finding of probable cause").
One loose end remains. The defendant suggests that, had
Officer Sirois investigated Jillian more fully, he would have
uncovered a trio of prior charges, seemingly related, brought on
the same day (in 2007) for forgery of a check, larceny by check,
and uttering a false check. These charges, he believes, would
have rendered Jillian sufficiently untrustworthy that no warrant
based on her word could have established probable cause.
We need not linger long over this suggestion. For one
thing, Officer Sirois did check to see whether Jillian had any
outstanding warrants (she did not), and we know of no rule
requiring a police officer to run a comprehensive criminal record
check before giving credence to a victim's account. See United
States v. Miller, 753 F.2d 1475, 1478 (9th Cir. 1985) (per curiam)
(concluding that officer's failure to check informant's criminal
record and background did not amount to reckless disregard for the
truth). For another thing, Jillian was never convicted on any of
those three related charges; rather, the charges were dismissed in
2008. On the facts of this case, we do not think that the mere
incidence of these dismissed charges could fairly be said to
undermine Jillian's credibility. Cf. United States v. Tanguay
(Tanguay II), 811 F.3d 78, 82 (1st Cir. 2016) (finding failure to
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include witness's arrests that "never ripened into convictions" in
affidavit did not materially affect probable cause determination);
United States v. Rumney, 867 F.2d 714, 720-21 (1st Cir. 1989) ("A
criminal record, no matter how lengthy, does not necessarily impugn
one's veracity."). Here, moreover, whatever slight weight might
fairly be ascribed to these dismissed charges vanishes in light of
"countervailing indicia of truthfulness." Tanguay I, 787 F.3d at
50.
That ends this aspect of the matter. We conclude,
without serious question, that the district court appropriately
denied the defendant's motion for a Franks hearing.
B. Sentencing.
This brings us to the defendant's claim of sentencing
error. As said, the district court sentenced him as an armed
career criminal under the ACCA, a statute that mandates mandatory
minimum sentences for defendants who have at least three
convictions for predicate offenses that qualify as violent
felonies and/or serious drug offenses. See 18 U.S.C. § 924(e)(1).
The defendant disputes his classification as an armed career
criminal.
The issue boils down to whether the defendant's criminal
history includes at least three convictions for ACCA predicate
offenses. The defendant says that none of his prior convictions
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qualifies as an ACCA predicate. The government demurs, submitting
that the requisite number of predicate offenses exist. It points
to the defendant's 1995 ADW conviction, his 2000 drug-distribution
conviction, and his 2007 AAIM conviction.6
The defendant is facing a steep uphill climb. He
acknowledges that there is circuit precedent holding that each of
the three convictions relied upon by the government qualifies as
an ACCA predicate offense. He asks us, though, to reconsider these
decisions.
It is common ground that "[i]n a multi-panel circuit,
newly constituted panels are, for the most part, bound by prior
panel decisions closely on point." Williams v. Ashland Eng'g Co.,
45 F.3d 588, 592 (1st Cir. 1995). This tenet embodies what has
come to be known as the law of the circuit doctrine, which is a
"subset of stare decisis." San Juan Cable LLC v. P.R. Tel. Co.,
6 The government's enumeration excludes the 1993 drug
conviction, but includes the 2007 AAIM conviction, which the
district court did not think satisfied the requirements for an
ACCA predicate offense. See supra note 2. The fact that the
district court did not regard the 2007 AAIM conviction as an ACCA
predicate does not foreclose our consideration of it. When all is
said and done, it does not matter that the district court based
the defendant's armed career criminal classification on a trio of
convictions that differ in part from the trio of convictions on
which we rely. See United States v. Edwards, 857 F.3d 420, 421-
22 (1st Cir. 2017) (affirming armed career criminal designation
based on different set of predicate-offense convictions than
relied upon by sentencing court); United States v. Hudson, 823
F.3d 11, 13 (1st Cir. 2016) (same).
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612 F.3d 25, 33 (1st Cir. 2010). The law of the circuit doctrine
is one of the sturdiest "building blocks on which the federal
judicial system rests." Id. It provides stability and
predictability to litigants and judges alike, see id. at 34, while
at the same time fostering due respect for a court's prior
decisions. Without the law of the circuit doctrine, the finality
of appellate decisions would be threatened and every decision, no
matter how thoroughly researched or how well-reasoned, would be
open to continuing intramural attacks. See LaShawn v. Barry, 87
F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).
Of course, the law of the circuit doctrine — like most
legal doctrines — admits of exceptions. In that sense, the
doctrine is "neither a straightjacket nor an immutable rule."
Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d
136, 142 (1st Cir. 2000). Withal, the exceptions to the law of
the circuit doctrine are narrowly circumscribed and their
incidence is "hen's-teeth-rare." San Juan Cable, 612 F.3d at 33.
One such exception applies when the holding of a previous panel is
contradicted by subsequent controlling authority, such as a
decision by the Supreme Court, an en banc decision of the
originating court, or a statutory overruling. See United States
v. Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008). A second
exception may come into play when "authority that postdates the
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original decision, although not directly controlling, nevertheless
offers a sound reason for believing that the former panel, in light
of fresh developments, would change its collective mind."
Williams, 45 F.3d at 592. Unless a litigant can demonstrate that
one of these exceptions applies to a prior panel decision, a newly
constituted panel must continue to adhere to the earlier holding.
See id.
With this legal landscape in place, we examine the
defendant's challenges to the status of each of the three
predicate-offense convictions relied upon by the government.
 The 2000 drug conviction. The defendant argues
that his 2000 drug conviction for possession of a
controlled substance with intent to distribute
under Mass. Gen. Laws ch. 94C, § 32A(a) is not a
conviction for a "serious drug offense" within the
purview of the ACCA. In mounting this argument, he
concedes that a number of our cases hold to the
contrary. See, e.g., United States v. Hudson, 823
F.3d 11, 15 (1st Cir. 2016); United States v.
Weekes, 611 F.3d 68, 72 (1st Cir. 2010); United
States v. Moore, 286 F.3d 47, 49 (1st Cir. 2002).
He nonetheless insists that exceptions to the law
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of the circuit doctrine allow us to reexamine these
precedents. We think not.
The statute under which the defendant was
convicted provides for concurrent jurisdiction in
the Massachusetts superior and district courts.
See Mass. Gen. Laws ch. 94C, § 32A(a); Hudson, 823
F.3d at 14. The prosecuting attorney, in his
discretion, designates the forum in which a
particular defendant will be charged. See Hudson,
823 F.3d at 14. The statutory maximum sentence for
the offense is ten years, see Mass. Gen. Laws ch.
94C, § 32A(a); but if the prosecutor decides to
bring the charge in the district court, the
defendant cannot be sentenced to more than a
thirty-month incarcerative term, see id.; see also
id. ch. 218, § 27.
Here, the defendant was prosecuted in district
court. Since the ACCA defines serious drug
offenses as those "for which a maximum term of
imprisonment of ten years or more is prescribed by
law," 18 U.S.C. § 924(e)(2)(A)(i), the defendant
contends that his conviction should not count as an
ACCA predicate offense.
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This contention is familiar: it has been made
to us several times in essentially the same form by
defendants who, like the defendant in this case,
were prosecuted for section 32A(a) offenses in
district court. We have consistently rejected this
contention. See Hudson, 823 F.3d at 14-15; Weekes,
611 F.3d at 72; Moore, 286 F.3d at 49. The latest
reaffirmation of this holding occurred earlier this
term. See United States v. López, 890 F.3d 332,
341 (1st Cir. 2018).
Confronting this wall of precedent, the
defendant posits that two Supreme Court decisions
justify abandonment of our settled rule. First, he
suggests that United States v. Rodriquez, 553 U.S.
377 (2008), should be deemed controlling authority.
Second, he suggests that Carachuri-Rosendo v.
Holder, 560 U.S. 563 (2010), provides a compelling
reason for believing that earlier panels would
change their thinking.
Both suggestions lack force. These Supreme
Court opinions predate several of the decisions
that he asks us to reexamine. Consequently, they
cannot lay the groundwork for either of the
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exceptions to the law of the circuit doctrine. If
more were needed — and we doubt that it is — certain
of our prior precedents have specifically discussed
and distinguished Rodriquez and Carachuri-Rosendo.
See López, 890 F.3d at 338-40 (discussing
Carachuri-Rosendo); Weekes, 611 F.3d at 72
(discussing Rodriquez).
To say more about the defendant's 2000 drug-
distribution conviction would be supererogatory.
Consistent with our prior precedent and with the
law of the circuit doctrine, we hold that this
conviction is properly classified as an ACCA
predicate offense.
 The 1995 ADW conviction. The defendant argues that
his 1995 ADW conviction under Mass. Gen. Laws ch.
265, § 15B(b) is not a "violent felony" within the
purview of the ACCA. In mounting this argument, he
concedes that we previously have held to the
contrary. See, e.g., United States v. Whindleton,
797 F.3d 105, 116 (1st Cir. 2015); United States v.
Hart, 674 F.3d 33, 41 (1st Cir. 2012); United States
v. Am, 564 F.3d 25, 33 (1st Cir. 2009). Urging
abandonment of this line of cases, he exhorts us to
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find that the Supreme Court's decision in Johnson
v. United States, 559 U.S. 133 (2010), leaves us at
liberty to brush aside the law of the circuit
doctrine.
Once again, the defendant's exhortation
overlooks the timing of the Supreme Court decision
upon which he relies. Johnson predates Whindleton,
and our panel opinion in that case provides an in-
depth analysis of Johnson, holding squarely that
"Johnson does not overrule our [prior] holding"
that Massachusetts ADW is a violent felony under
the ACCA. Whindleton, 797 F.3d at 116.
Consequently, the law of the circuit doctrine
controls and compels us to uphold the
classification of the defendant's 1995 ADW
conviction as an ACCA predicate offense.
 The 2007 AAIM conviction. The defendant argues
that his 2007 AAIM conviction under Mass. Gen. Laws
ch. 265, § 18(b) is not a "violent felony" within
the purview of the ACCA. In mounting this argument,
he concedes that we have recently determined that
Massachusetts AAIM is a violent felony within the
purview of the ACCA. See United States v. Edwards,
- 30 -
857 F.3d 420, 427 (1st Cir.), cert. denied 138 S.
Ct. 283 (2017). Although the defendant argues that
Edwards was wrongly decided, he does not offer any
cognizable basis for invoking an exception to the
law of the circuit doctrine. Consequently, his
argument is foreclosed, and the AAIM conviction is
properly classified as an ACCA predicate offense.
With respect to the challenged sentence, all roads lead
to Rome. Each of the three convictions identified by the
government qualifies, under binding circuit precedent, as a
conviction for an ACCA predicate offense. The law of the circuit
doctrine is a mainstay of our jurisprudence and, according it due
weight, we hold that the district court did not err in classifying
the defendant as an armed career criminal and sentencing him under
the ACCA.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the defendant's conviction and sentence are
Affirmed.
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