Filed: Aug. 10, 2015
Latest Update: Mar. 02, 2020
Summary: , 4 We are not persuaded by Whindleton's argument that the statute, of conviction must fit perfectly within one of these categories of, inchoate crimes to qualify as a serious drug offense under the, ACCA.threatened battery.of assault in Massachusetts. United States v. Fish, 758 F.3d 1, 9 (1st Cir.
United States Court of Appeals
For the First Circuit
No. 14-1932
UNITED STATES OF AMERICA,
Appellee,
v.
JERMAINE WHINDLETON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
J. Hilary Billings, Assistant Federal Defender, for
appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
August 10, 2015
LYNCH, Circuit Judge. Jermaine Whindleton appeals his
fifteen-year sentence for being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). Under the Armed Career
Criminal Act ("ACCA"), a defendant convicted under § 922(g)(1)
faces a mandatory minimum sentence of fifteen years if he or she
has three previous convictions for "a violent felony or a serious
drug offense." Id. § 924(e). Whindleton concedes that one of his
prior convictions qualifies as an ACCA predicate, but challenges
on appeal the other two convictions identified by the district
court.
We must resolve, first, whether Whindleton's prior
conviction for Criminal Sale of a Controlled Substance under New
York Penal Law § 220.39(1) qualifies as a "serious drug offense."
Second, we must resolve whether Whindleton's prior conviction for
Assault with a Dangerous Weapon under Massachusetts General Laws
ch. 265, § 15B(b), qualifies as a "violent felony." Precedent
informs our resolution of the former and mandates the latter.
Since we conclude that both of the challenged convictions qualify
as ACCA predicate offenses, we affirm Whindleton's sentence.
I.
Whindleton was arrested after using the barrel of a
shotgun to strike Christopher Frey in the head during an argument
in June of 2012 over a drug debt that Frey owed to Whindleton.
Whindleton was later indicted for "knowingly possess[ing] . . . a
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Mossberg, Model 500B, 16 Gauge shotgun" after having been convicted
of four felonies in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Specifically, Whindleton had been previously convicted of
(1) Criminal Sale of a Controlled Substance in the Third Degree in
New York in 2005; (2) Assault in the Second Degree in New York in
2006; (3) Assault with a Dangerous Weapon ("ADW") in Massachusetts
in 2009; and (4) Possession with Intent to Distribute in
Massachusetts in 2009.
A conviction for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), requires the
defendant to possess a firearm after any one felony conviction. A
jury found Whindleton guilty "of possession of a firearm by a
convicted felon" on April 9, 2014.
An enhanced sentence under the ACCA, 18 U.S.C. § 924(e),
requires the defendant to violate § 922(g) after three prior
convictions for a "violent felony" or a "serious drug offense," as
these terms are defined by the statute. If the ACCA applied to
Whindleton's criminal history, he faced a mandatory minimum
sentence of fifteen years. 18 U.S.C. § 924(e)(1). If not, he
faced a maximum sentence of ten years. Id. § 924(a)(2).
At sentencing, Whindleton conceded that his
Massachusetts conviction for Possession with Intent to Distribute
qualified as a "serious drug offense." Over Whindleton's
objection, the district court concluded that Whindleton's New York
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conviction for Criminal Sale of a Controlled Substance in the Third
Degree also qualified as a "serious drug offense," and that
Whindleton's Massachusetts conviction for ADW qualified as "a
violent felony."1 As a result, the district court imposed the
mandatory minimum sentence under the ACCA of 180 months, or 15
years.
II.
Section 922(g)(1) prohibits any person who has been
convicted of a crime punishable by imprisonment for a term
exceeding one year from shipping, possessing, or receiving
firearms. 18 U.S.C. § 922(g)(1). The ACCA increases the mandatory
minimum sentence for this crime to fifteen years if the defendant
has three prior convictions for "a violent felony or a serious
drug offense, or both, committed on occasions different from one
another." Id. § 924(e)(1). In this case, Whindleton argues that
the district court erred when it concluded that his conviction for
Criminal Sale of a Controlled Substance in the Third Degree
qualified as a "serious drug offense," and that his conviction for
ADW qualified as a "violent felony."
Whether a prior conviction qualifies as an ACCA
predicate offense is a legal question we review de novo. United
1 The district court also concluded that Whindleton's New York
conviction for Assault in the Second Degree did not qualify as a
"violent felony." The government has not challenged this
determination on appeal.
- 4 -
States v. Carrigan, 724 F.3d 39, 48 (1st Cir. 2013). We employ a
categorical approach, under which "we may consider only the
offense's legal definition, forgoing any inquiry into how the
defendant may have committed the offense." United States v.
Holloway,
630 F.3d 252, 256 (1st Cir. 2011); see also United States
v. Bryant,
571 F.3d 147, 157 n.7 (1st Cir. 2009) (applying the
same approach to controlled substances offenses).
The categorical approach is "modified" if the defendant
was convicted under a statute which "sets out one or more elements
of the offense in the alternative." See Descamps v. United States,
133 S. Ct. 2276, 2281 (2013). Under the modified categorical
approach, the court may "consult a limited class of documents . . .
to determine which alternative formed the basis of the defendant's
prior conviction."
Id. If these documents do not identify the
basis of the defendant's prior conviction, the court must ensure
that "each of the possible offenses of conviction would qualify
[as an ACCA predicate]."
Holloway, 630 F.3d at 257.
A. New York Criminal Sale of a Controlled Substance
Whindleton first argues that the district court erred in
concluding that his 2005 conviction for Criminal Sale of a
Controlled Substance in the Third Degree under New York Penal Law
§ 220.39(1) qualifies as a "serious drug offense" under the ACCA.
The ACCA defines a "serious drug offense" as "an offense under
State law, involving manufacturing, distributing, or possessing
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with intent to manufacture or distribute, a controlled substance
. . ., for which a maximum term of imprisonment of ten years or
more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).2
A person violates New York Penal Law § 220.39(1) "when
he knowingly and unlawfully sells . . . a narcotic drug." New
York defines "sell" to mean "to sell, exchange, give or dispose of
to another, or to offer or agree to do the same." N.Y. Penal Law
§ 220.00(1) (emphasis added). Since Whindleton's record of
conviction does not specify on what theory he was convicted, we
must ensure that any form of the conviction would qualify as a
"serious drug offense" under the ACCA. See Holloway, 630 F.3d at
257. Whindleton argues that his conviction does not qualify as a
"serious drug offense" since an offer to sell does not "involv[e]
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance."3
2 The ACCA also defines a "serious drug offense" as "an offense
under the Controlled Substances Act . . ., the Controlled
Substances Import and Export Act . . ., or chapter 705 of title
46, 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). This
definition is not relevant to this case.
3 We note that the 2004 Drug Law Reform Act, which applied to
defendants who committed their crimes after January 13, 2005,
lowered the maximum sentence for Class B drug crimes to nine years.
See 2004 N.Y. Sess. Laws ch. 738 §§ 36, 41 (McKinney) (codified at
N.Y. Penal Law § 70.70(2)(a)(i) (2005)); see also People v. Utsey,
855 N.E.2d 791, 793 & n.5 (N.Y. 2006). The 2009 Drug Law Reform
Act then made that reduced sentence available to individuals
convicted of Class B drug crimes before 2009 in certain
circumstances. See 2009 N.Y. Sess. Laws ch. 56, pt. AAA, § 9
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We have previously held that, "[b]y using 'involving,'
Congress captured more offenses than just those that 'are in fact'
the manufacture, distribution, or possession of, with intent to
distribute, a controlled substance." United States v. McKenney,
450 F.3d 39, 42 (1st Cir. 2006). The definition of a "serious
drug offense" also "'encompass[es] . . . offenses that are related
to or connected with such conduct.'"
Id. at 43-44 (quoting United
States v. King,
325 F.3d 110, 113 (2d Cir. 2003)).
For example, in McKenney, we held that a defendant's
conviction for "conspiracy to violate a state controlled
substances law by agreeing to possess with intent to deliver
cocaine" qualified as a "serious drug offense" under the ACCA.
Id. at 40. There was no argument that the defendant did, in fact,
possess cocaine with intent to deliver, or that the defendant even
took an overt step in that direction.
Id. at 42-43 nn. 6 & 8.
Nevertheless, we held that "the conspiracy standing alone was
sufficient."
Id. at 42-43 n.8. We explained that "the
relationship between the inchoate offense of conspiracy and its
object -- its entire purpose -- is plainly close enough that a
(McKinney) (codified at N.Y. Crim. Proc. § 440.46); see also United
States v. Calix, No. 13-582,
2014 WL 2084098, at *12 (S.D.N.Y. May
13, 2014). Whindleton makes no argument that New York's subsequent
sentencing reforms for drug offenses should affect his case, and
so we do not consider the issue further. Cf. McNeill v. United
States,
131 S. Ct. 2218, 2224 n.1 (2011); Rivera v. United States,
716 F.3d 685 (2d Cir. 2013), Calix,
2014 WL 2084098; United States
v. Jackson, No. 13-142,
2013 WL 4744828 (S.D.N.Y. Sept. 4, 2013).
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conspiracy to possess with intent to distribute is, under the ACCA,
an offense 'involving . . . possessing with intent to . . .
distribute.'" Id. at 45 (alterations in original).
Whindleton concedes, as he must, that courts have
"interpreted the ACCA's language to include conspiring or
attempting to manufacture, distribute, or possess with intent to
distribute drugs" as well as "aiding and abetting the distribution
of drugs." See, e.g., McKenney, 450 F.3d at 45 (conspiracy);
King,
325 F.3d at 115 (attempt); United States v. Madera,
521 F. Supp.
2d 149, 152 (D. Conn. 2007) (accessory liability). But, he
maintains, "an offer to provide drugs is simply not the equivalent
of either a conspiracy, attempt, or aiding and abetting."
We understand Whindleton's argument to be that an offer
to sell is farther removed from its object than these inchoate
crimes.4 We have said that "[n]ot all offenses bearing any sort
of relationship with drug manufacturing, distribution, or
4 We are not persuaded by Whindleton's argument that the statute
of conviction must fit perfectly within one of these categories of
inchoate crimes to qualify as a "serious drug offense" under the
ACCA. This argument is foreclosed by McKenney, in which we
explained that our inquiry is simply whether the statute at issue
is sufficiently "related to or connected with" distributing,
manufacturing, or possessing with intent to distribute or
manufacture a controlled substance such that it "involv[es]" the
same. See 450 F.3d at 43-44 (quoting
King, 325 F.3d at 113); see
also United States v. Gibbs,
656 F.3d 180, 185-86 (3d Cir. 2011).
The inchoate crimes of conspiracy, attempt, and aiding and abetting
are examples of qualifying statutes, but not an exclusive list of
possibilities.
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possession with intent to manufacture or distribute will qualify
as predicate offenses under the ACCA." McKenney, 450 F.3d at 45.
Critically, "[t]he relationship must not be too remote or
tangential."
Id.
Other circuits, considering this question for different
statutes, have concluded that offers to sell controlled substances
are sufficiently "related to or connected with" drug distribution
to qualify as serious drug crimes. In Texas, for example, the
delivery statute was violated by "a person knowingly or
intentionally offer[ing] to sell what he states is a controlled
substance." United States v. Vickers,
540 F.3d 356, 365 (5th Cir.
2008) (citation and internal quotation marks omitted). Texas law
did not require the defendant to "have any drugs to sell or even
intend ever to obtain the drugs he is purporting to sell."
Id.
The Fifth Circuit nevertheless concluded that the Texas conviction
qualified as a "serious drug offense" under the ACCA.
Id. at 366.
The Fifth Circuit explained that "[t]he expansiveness of the word
'involving' supports that Congress was bringing into the statute's
reach those who intentionally enter the highly dangerous drug
distribution world."
Id. at 365.
Joining the Fifth Circuit, the Eighth Circuit held that
"knowingly offering to sell drugs is a 'serious drug offense' under
the ACCA." United States v. Bynum, 669 F.3d 880, 886 (8th Cir.
2012). The Eighth Circuit rejected the defendant's assertion that
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the offer "must be 'genuine, made in good faith, or be accompanied
by an actual intent to distribute a controlled substance' to
'involve' drug distribution." Id. at 887. "[S]o long as [the]
defendant has intentionally made an offer to sell a controlled
substance, he or she has 'intentionally enter[ed] the highly
dangerous drug . . . marketplace as a seller.'"
Id. (third and
fourth alterations in original) (quoting
Vickers, 540 F.3d at 365-
66).
Under the New York statute at issue in this case, a
defendant can be convicted of offering to sell a controlled
substance even if the offer is not accepted, and even if the
defendant does not yet possess the controlled substance. See
People v. Mike, 706 N.E.2d 1189, 1191 (N.Y. 1998); see also People
v. Samuels,
780 N.E.2d 513, 516 (N.Y. 2002). "However," the New
York Court of Appeals has explained, "in order to support a
conviction under an offering for sale theory, there must be
evidence of a bona fide offer to sell -- i.e., that defendant had
both the intent and the ability to proceed with the sale."
Mike,
706 N.E.2d at 1191.
These two requirements for a bona fide sale more closely
align the offer to sell a controlled substance with its ultimate
distribution. While there need not be proof that the offer was
accepted, there must be proof that the defendant intended to
proceed with the sale. See id. A fraudulent offer, "'such as
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when one offers to sell the Brooklyn Bridge,'" lacks the intent to
consummate the sale and so would not suffice. Pascual v. Holder,
723 F.3d 156, 158-59 (2d Cir. 2013) (per curiam) (quoting United
States v. Savage,
542 F.3d 959, 965 (2d Cir. 2008)). And, while
there need not be proof that the defendant already possessed the
controlled substance, there must be proof that he or she had the
ability to proceed with the sale. See
Samuels, 780 N.E.2d at 516;
Mike, 706 N.E.2d at 1191. A conviction would not stand without
proof that the "defendant had the ability to procure the
[controlled substance] he purportedly offered to sell." See
Mike,
706 N.E.2d at 1190-91 (citation and internal quotation marks
omitted).
Like our sister circuits, we conclude that an offer to
sell a controlled substance -- like an attempt to sell or a
conspiracy to sell -- is necessarily related to and connected with
its ultimate goal, the distribution of controlled substances. We
reject any requirement that the defendant already possess the
controlled substance or that the offer be accepted.5 It is
5 The Second and Third Circuits have held that New York Penal Law
§ 220.39(1) is analogous to the federal crime of attempted
distribution, 21 U.S.C. § 841(a)(1), and so qualifies as an
aggravated felony under the Immigration and Nationality Act.
Pascual, 723 F.3d at 158-59; Berroa v. Att'y Gen. of U.S., 523 F.
App'x 913, 917-18 (3d Cir. 2013) (per curiam). "Without doubt,"
the Second Circuit reasoned, "an offer to sell drugs -- made with
the intent and ability to carry out the transaction -- is both a
'substantial step' and an 'overt act' in the attempted sale of a
controlled substance."
Pascual, 723 F.3d at 159. We need not
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sufficient in this case that the defendant entered "the drug
marketplace" with the intent and ability to proceed with the sale
of a controlled substance if his or her offer were accepted.
Whindleton argues that this conclusion stretches the
definition of a "serious drug crime" too far. According to
Whindleton, "[s]uch an expansive reading of the ACCA undermines
the categorical approach mandated for determination of qualifying
predicates," and "do[es] harm to the cannon [sic] of strict
construction of criminal statutes, or the rule of lenity." "Under
such a standard," he contends, "the mere possession of any drug,
regardless of quantity, is 'related to or connected with'
possession with intent to distribute."
While the term "involving" may be expansive, it is not
limitless.6 McKenney, 450 F.3d at 45. We hold today only that an
offer to sell under New York law -- requiring the intent and the
ability to proceed with a sale -- sufficiently "involv[es]" the
decide in this case whether New York Penal Law § 220.39(1)
necessarily entails a substantial step under attempt liability
since such a step is not required to bring the statute within the
definition of "involving" in the ACCA.
6 Whindleton suggests that the expansive interpretation of the
word "involving" in 18 U.S.C. § 924(e)(2)(A)(ii) "raises issues of
constitutional vagueness." To the extent that Whindleton seeks to
challenge § 924(e)(2)(A)(ii) as void for vagueness, we consider
the argument insufficiently developed and, thus, waived. See
United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990).
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distribution of drugs to qualify as a "serious drug offense" under
the ACCA.
B. Massachusetts Assault with a Dangerous Weapon
Whindleton next argues that his 2009 conviction for ADW
under Massachusetts General Laws ch. 265, § 15B(b), does not
constitute a "violent felony" under the ACCA. The ACCA defines
the term "violent felony" as "any crime punishable by imprisonment
for a term exceeding one year . . . that":
(i) has as an element the use, attempted use,
or threatened use of physical force against
the person of another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another
. . . .
18 U.S.C. § 924(e)(2)(B). In this case, the district court
concluded that Whindleton's ADW conviction qualified as a "violent
felony" under the ACCA's so-called "Force Clause," the first clause
of the definition, and the so-called "Residual Clause," the catch-
all provision in the second clause after the enumerated offenses.
The Supreme Court has recently invalidated the Residual
Clause as unconstitutionally vague. Johnson v. United States, 135
S. Ct. 2551 (2015). That issue has dropped out of our case.7
7 In Johnson, the Court explained that, "[b]y combining
indeterminacy about how to measure the risk posed by a crime with
indeterminacy about how much risk it takes for the crime to qualify
as a violent felony, the residual clause produces more
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Whindleton does not challenge the constitutionality of
the Force Clause after Johnson. The Supreme Court specified that
its decision in Johnson "does not call into question application
of the Act to the four enumerated offenses, or the remainder of
the Act's definition of a violent felony." Id. at 2563. We focus
on whether Whindleton's conviction for ADW "has as an element the
use, attempted use, or threatened use of physical force against
the person of another," such that it qualifies as a "violent
felony" under the ACCA's Force Clause. 18 U.S.C.
§ 924(e)(2)(B)(i). Our precedent answers the question.
The Massachusetts ADW statute is violated by "[w]hoever,
by means of a dangerous weapon, commits an assault upon another."
Mass. Gen. Laws ch. 265, § 15B(b). The Massachusetts common law
recognizes two theories of assault: attempted battery and
threatened battery. Commonwealth v. Porro, 939 N.E.2d 1157, 1163
(Mass. 2010).8 Battery, in turn, has been defined as "harmful [or]
unpredictability and arbitrariness than the Due Process Clause
tolerates." 135 S. Ct. at 2558. Recognizing the impact of Johnson
on cases pending on direct review, see Griffith v. Kentucky,
479
U.S. 314, 328 (1987), the government has declined to pursue any
argument based on the now-invalidated Residual Clause.
8 Under the attempted-battery theory, the government must prove
that "the defendant 'intended to commit a battery, took some overt
step toward accomplishing that intended battery, and came
reasonably close to doing so.'"
Porro, 939 N.E.2d at 1163 (quoting
Commonwealth v. Melton,
763 N.E.2d 1092, 1096 (Mass. 2002)). Under
the threatened-battery theory, the government must prove that "the
defendant engaged in conduct that a reasonable person would
recognize to be threatening, that the defendant intended to place
- 14 -
offensive touching[]." See Commonwealth v. Burke, 457 N.E.2d 622,
624 (Mass. 1983). As such, the crime of simple assault has been
held to encompass attempted or threatened touching if offensive.
See United States v. Martinez,
762 F.3d 127, 138 (1st Cir. 2014).
"The crime of [ADW] adds one additional element, namely, that the
assault was perpetrated by means of a dangerous weapon."
Commonwealth v. Melton,
763 N.E.2d 1092, 1096 (Mass. 2002).
This circuit has already held that a defendant's ADW
conviction "clearly satisfies" the ACCA's Force Clause. United
States v. Am, 564 F.3d 25, 33 & n.9 (1st Cir. 2009). In Am, we
quoted the Massachusetts Supreme Judicial Court as holding that
"'[a]n assault is defined as either an attempt to use physical
force on another, or as a threat of use of physical force.'"
Id.
at 33 (quoting Commonwealth v. Gorassi,
733 N.E.2d 106, 110 (Mass.
2000)). "By its terms," we explained, "the Massachusetts statute
at issue, which criminalizes 'an assault upon another' by 'means
of a dangerous weapon' 'has as an element the use, attempted use,
or threatened use of physical force' as required by ACCA."
Id.
(citations omitted).9
the victim in fear of an imminent battery, and that the victim
perceived the threat."
Id.
9 In Am, we also rejected the defendant's pro se argument that
the mens rea for Massachusetts ADW was insufficient to qualify as
a crime of
violence. 564 F.3d at 33-34. The Massachusetts ADW
statute "is a general intent crime and requires either intentional
and unjustified use of force upon another person or the
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Generally, "a ruling of law by a panel of this court is
binding upon subsequent panels." Arecibo Cmty. Health Care, Inc.
v. Puerto Rico, 270 F.3d 17, 22 (1st Cir. 2001). An exception to
the doctrine of stare decisis applies if "[a]n existing panel
decision [is] undermined by controlling authority, subsequently
announced, such as an opinion of the Supreme Court . . . ." United
States v. Rodriguez-Pacheco,
475 F.3d 434, 441 (1st Cir. 2007)
(first and second alterations in original) (citation and internal
quotation marks omitted).
Whindleton challenges "the continuing vitality" of our
holding in Am based on the Supreme Court's decision in another
critical ACCA case named Johnson v. United States. In Johnson,
the defendant had been convicted under Florida's battery statute,
which could be violated by "any intentional physical contact, no
matter how slight," such as a tap on the shoulder without consent.
559 U.S. 133, 138 (2010) (citation and internal quotation marks
omitted). The Court held that "the phrase 'physical force' [in
the ACCA] means violent force -- that is, force capable of causing
'intentional commission of a wanton or reckless act . . . causing
physical or bodily injury to another.'"
Id. at 34 (alteration in
original) (quoting Commonwealth v. Ford,
677 N.E.2d 1149, 1151
(Mass. 1997)). We held that, "under either of these two theories,
[the state] had to show that Am acted intentionally."
Id.
Whindleton has not argued on appeal that this conclusion was
incorrect or that any intervening precedent requires us to revisit
our holding regarding the mens rea of the Massachusetts ADW
statute.
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physical pain or injury to another person." Id. at 140. Because
the Florida statute could be satisfied by physical force that did
not amount to violent force, the Court held that a conviction under
it did not qualify as a violent felony under the Force Clause.
See
id. at 139-43, 145.
Whindleton argues that Johnson undermines the holding of
Am "[s]ince assault, even with use of a dangerous weapon, is based
upon either an attempted or threatened battery that may be
accomplished by a mere touching." After careful review, we
conclude that Johnson in no way undermines Am, and we remain bound
by its holding. See United States v. Chanthachack, 483 F. App'x
580, 580 (1st Cir. 2012) (per curiam) (citing Am as controlling
precedent after Johnson).
It is critical that the statute at issue here is Assault
with a Dangerous Weapon. The statute can be understood as having
two elements: the attempted or threatened battery (simple assault)
and the use of a dangerous weapon. See Melton, 763 N.E.2d at 1096.
Whindleton's argument focuses solely on the first element. Namely,
Whindleton argues that assault is either attempted or threatened
battery; that battery can be accomplished by mere touching; and
that, ergo, a defendant can be convicted of assault for attempted
or threatened offensive touching, which is insufficient for a
violent felony after Johnson. This was, in fact, the logic of
Martinez, in which we held that simple assault did not qualify as
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a "crime of violence" under the Sentencing Guidelines. See 762
F.3d at 137-38. But, this case involves the additional element
that the assault must be accomplished "by means of a dangerous
weapon." Mass. Gen. Laws ch. 265, § 15B(b). Cf. United States v.
Dancy,
640 F.3d 455, 467-69 (1st Cir. 2011) (distinguishing Assault
and Battery on a Police Officer from Assault and Battery due to
the additional element).
"To support a conviction under § 15B, the Commonwealth
must show that the threat of harm was by means of a dangerous
weapon." Commonwealth v. Flanagan, 458 N.E.2d 777, 781 (Mass.
App. Ct. 1984). Under Massachusetts law, a dangerous weapon can
be "dangerous per se" or "dangerous as used." Commonwealth v.
Tevlin,
741 N.E.2d 827, 833 (Mass. 2001). The first category
consists of "instrumentalit[ies] designed and constructed to
produce death or great bodily harm."
Id. (alteration in original)
(citation and internal quotation marks omitted). The second
category consists of objects that, "as used by the defendant, [are]
capable of producing serious bodily harm."
Id. (citation and
internal quotation marks omitted). Logically, the harm threatened
by an assault is far more violent than offensive touching when
committed with a weapon that is designed to produce or used in a
way that is capable of producing serious bodily harm or death. As
a result, the element of a dangerous weapon imports the "violent
- 18 -
force" required by Johnson into the otherwise overbroad simple
assault statute.
Following this reasoning, a Massachusetts Appeals Court
in Commonwealth v. Clark, 10 N.E.3d 670,
2014 WL 2776858 (Mass.
App. Ct. June 20, 2014) (unpublished opinion), held that ADW
necessarily entails violent force due to the nature of a dangerous
weapon. See
id. at *1. There, the Massachusetts Appeals Court
analyzed whether a conviction for ADW qualified as a "violent
crime" under Massachusetts' version of the ACCA.10
Id. Citing Am
with approval, the court held that "[a]ll the crimes encompassed
in [the ADW statute] are violent crimes under the [Massachusetts
ACCA] force clause."
Id. The court focused on the dangerous-
weapon element and explained that, "[b]ecause the weapon has to be
capable of producing serious bodily harm or be designed and
constructed to produce death or great bodily harm, every attempted
battery or immediately threatened battery with this type of weapon
is either an attempted use or threatened use of physical force
that is capable of causing pain or injury." Id.
10 The equivalent of the ACCA's Force Clause in the Massachusetts
statute defines a "violent crime" as "any crime punishable by
imprisonment for a term exceeding one year . . . that: (i) has as
an element the use, attempted use or threatened use of physical
force or a deadly weapon against the person of another." Mass.
Gen. Laws ch. 140, § 121; see also Mass. Gen. Laws ch. 269, § 10G.
The term "physical force" in the Massachusetts statute "means
'violent or substantial force capable of causing pain or injury.'"
Clark,
2014 WL 2776858, at *1 (citation omitted).
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Our court has previously relied on similar logic to find
that Assault and Battery with a Dangerous Weapon ("ABDW") qualifies
as a violent felony under the now-invalid Residual Clause. See
United States v. Hart, 674 F.3d 33, 40-44 (1st Cir. 2012). In
Hart, we stressed that ABDW must "be perpetrated by means of a
dangerous weapon."
Id. at 44. We held that, in light of
Massachusetts' definition for a dangerous weapon, "'logic dictates
that ABDW ineluctably poses a serious potential risk of physical
injury' because the defendant effected the touching with an
instrument designed to cause, or wielded an object in a manner
capable of producing, serious bodily harm."
Id. 42-43 (quoting
United States v. Glover,
558 F.3d 71, 81 (1st Cir. 2009)).
Accordingly, we held that ABDW was a violent felony under the
Residual Clause even if AB was not. Compare
Holloway, 630 F.3d at
260-62 (holding that AB does not categorically qualify under the
Residual Clause), with
Hart, 674 F.3d at 44 (holding that ABDW
does). Like in Hart, ADW can be a violent felony under the Force
Clause, even if simple assault is not, by virtue of the additional
dangerous-weapon element.
This conclusion is further supported by the Tenth
Circuit's decision in United States v. Ramon Silva, 608 F.3d 663
(10th Cir. 2010), issued after Johnson. There, the Tenth Circuit
considered a New Mexico statute, which defined aggravated assault
as "'unlawfully assaulting or striking at another with a deadly
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weapon.'" Id. at 669 (quoting N.M. Stat. Ann. § 30-3-2(A)). The
defendant argued that a conviction under this statute did not
qualify as a violent felony under the ACCA since the statute could
be violated by "'engaging in conduct with a deadly weapon that
causes the victim to believe he or she was about to receive a
battery,'"
id., which is similar to the threatened-battery theory
of assault in Massachusetts.
"Applying Johnson," the Tenth Circuit concluded that
this theory of assault qualified as a violent felony under the
Force Clause of the ACCA.11 Id. at 670. The court explained:
Purposefully threatening or engaging in
menacing conduct toward a victim, with a
weapon capable of causing death or great
bodily harm, threatens the use of "force
capable of causing physical pain or injury" in
two different ways. The conduct "could always
lead to . . . substantial and violent contact,
and thus it would always include as an
element" the threatened use of violent force.
And the conduct "could at least put the victim
on notice of the possibility that the weapon
will be used more harshly in the future,
thereby constituting a threatened use of
force."
11 Citing Am, the Tenth Circuit also rejected the argument that
the conviction for apprehension-causing aggravated assault lacked
the necessary mens rea since it was a "general intent crime."
Ramon Silva, 608 F.3d at 672-73. "[T]he crime requires proof that
a defendant purposefully threatened or engaged in menacing conduct
toward a victim, with a weapon capable of producing death or great
bodily harm."
Id. at 674 (emphasis deleted). The Tenth Circuit
concluded that "this intentional conduct threatens the use of
physical force against the person of another, and therefore
qualifies as a violent felony under the ACCA."
Id.
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Id. at 672 (alteration in original) (citations omitted); see also
United States v. Rede-Mendez,
680 F.3d 552, 558 (6th Cir. 2012)
(noting that "the use of a deadly weapon may transform a lesser
degree of force into the necessary 'violent force'").
Finally, dicta in Johnson assumed that an assault and
battery with a dangerous weapon was a "violent felony." The
Supreme Court noted that "[w]hen the adjective 'violent' is
attached to the noun 'felony,' its connotation of strong physical
force is even clearer," and quoted Black's definition of "violent
felony" as "[a] crime characterized by extreme physical force,
such as murder, forcible rape, and assault and battery with a
dangerous weapon." Johnson, 559 U.S. at 140-41 (emphasis added).
For these reasons, we conclude that Johnson does not
overrule our holding in Am that the Massachusetts statute for ADW,
"which criminalizes 'an assault upon another' by 'means of a
dangerous weapon,' 'has as an element the use, attempted use, or
threatened use of physical force'" as required by the ACCA's Force
Clause. 564 F.3d at 33 (citations omitted).12
12 We note that this circuit has held that a conviction for ABDW
"does not have as an element" the intentional use of physical (i.e.
violent) force, and so does not qualify as a "crime of violence"
under a different (but similarly worded) statute, 18 U.S.C.
§ 16(a). United States v. Fish,
758 F.3d 1, 9 (1st Cir. 2014)
(internal quotation marks omitted). But whether Fish's holding
should inform our analysis of the ACCA is a point we need not
decide today, as the defendant has not developed, or even expressly
asserted, any argument that Massachusetts's ADW fails to qualify
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III.
We affirm Whindleton's sentence under the ACCA.
as a violent felony under the ACCA because it lacks any requirement
that the use or threat be intentional.
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