MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief United States District Judge and JOHN J. McCONNELL, JR., United States District Judge.1

Before the Court are the Defendants' motions under 28 U.S.C. § 2255 to vacate, set aside, or correct their sentences. All the Defendants were sentenced after being convicted of violating 18 U.S.C. § 922(g), which makes it unlawful for felons "to possess in or affecting commerce, any firearm or ammunition." All the Defendants received mandatory sentences of at least 15 years pursuant to the Armed Career Criminal Act (ACCA), which requires a sentence of at least that length for possessing a firearm or ammunition when a person has three prior convictions by any court for violent felonies or serious drug offenses or a combination of both. 18 U.S.C. § 924(e). For persons without three qualifying predicate convictions, the statute permits a maximum sentence of 10 years. 18 U.S.C. § 924(a)(2). The Defendants argue that they no longer have three qualifying predicate convictions because of the United States Supreme Court's recent decision in Johnson v. United States (Johnson II), ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which invalidated the ACCA's residual clause for being unconstitutionally vague.2 Specifically, the Defendants argue that their convictions for the Rhode Island offense of Felony Assault/Assault with a Dangerous Weapon ("ADW") no longer qualify as ACCA predicate offenses.3

The Court holds that because Rhode Island's ADW can be satisfied with a mens rea of recklessness, and the ACCA requires a mens rea of more than recklessness to constitute a violent felony under 18 U.S.C. § 924, six of the Defendants (Weems, Sabetta, Paige, Rodriguez, Rose, and Lee) no longer have the necessary three predicate convictions to qualify as an Armed Career Criminal. The sole exception is Defendant Young, whose motion raises additional issues that need further analysis.4 Accordingly, the Court will schedule the Defendants, individually, for hearings on their motions to vacate and re-sentencings forthwith.

BACKGROUND

In Johnson II, the Supreme Court narrowed the scope of crimes that qualify as "violent felonies" by invalidating the residual clause of that term's definition in the ACCA. 135 S.Ct. at 2563. The residual clause had defined a violent felony to include any felony that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Without that clause, the definition of a violent felony comprises the "force clause" and the "enumerated offenses clause." The statute states:

18 U.S.C. § 924(e)(2)(B)(i)-(ii). In Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson II announced a substantive rule that applied retroactively on collateral review.

All the Defendants contend that after Johnson II invalidated the residual clause, they have fewer than three ACCA-predicate convictions. In other words, they argue that at least one of their predicate convictions only qualified as a violent felony under the residual clause and does not qualify under either the force clause or the enumerated offenses clause. The Government responds that all the Defendants still have three predicate qualifying convictions because their contested convictions all have "as an element the use, attempted use, or threatened use of physical force against the person of another."5 18 U.S.C. § 924(e)(2)(B)(i). The Court is tasked with deciding whether the convictions contested by the Defendants qualify as violent felonies under the statute's force clause.

ANALYSIS

The Court's analysis proceeds in three steps. First, the Court determines whether to apply the categorical or the modified categorical approach in evaluating Rhode Island's felony assault statute. As discussed below, the modified categorical approach is appropriate because the underlying state statute is divisible. The Court therefore must review Shepard-approved documents of the individual Defendants' underlying convictions to determine which specific offenses within the divisible statute served as the bases for the convictions. For six of the Defendants, the offense was assault with a dangerous weapon; for Defendant Lee, it was felony assault by use of devices similar in appearance to a firearm, which is functionally the same as ADW.

Second, the Court asks whether ADW has as an element, the use, attempted use, or threatened use of violent force against the person of another. The defendants argue that it does not because it can be committed with a mere recklessness mens rea. To address this argument, the Court must answer two additional questions, one of state law and the second of federal law. The first question is whether proving a recklessness mens rea is sufficient for an ADW conviction in Rhode Island. It is. The second question is whether a crime can qualify as a violent felony under the ACCA's force clause if it only requires proving a recklessness mens rea. It cannot. Concluding that a Rhode Island conviction for ADW does not require proving the use, attempted use, or threatened use of violent force against the person of another, the Court concludes that it is not categorically a violent felony as the ACCA defines that term.

Third, the Court finds that procedural default does not bar the claims of six of the Defendants (Weems, Sabetta, Paige, Rodriguez, Rose, and Lee) and reserves judgment as to Defendant Young.

Determining whether ADW in Rhode Island is a violent felony for purposes of ACCA is not a straight-forward task. Over 100 years of Rhode Island case law on ADW has meant that the state court has discussed the mens rea component in a variety of ways. The central questions we must decide here are not easy, and the answers are at times not clear. So, we are guided by the principal that "[t]he rule of lenity requires interpreters to resolve ambiguity in criminal laws in favor of defendants." Whitman v. United States, ___ U.S. ___, 135 S.Ct. 352, 353, 190 L.Ed.2d 381 (2014) (Scalia, J., statement respecting the denial of certiorari); see also United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) ("The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them."); United States v. Gray, 780 F.3d 458, 468 (1st Cir. 2015).

As explained below, the Court finds that ADW can be committed recklessly under Rhode Island state law. While we recognize that this is a close call for the reasons discussed below, we come to this conclusion because: first, assault has been defined by the Rhode Island Supreme Court as requiring an intent of malice or wantonness, State v. Jeremiah, 546 A.2d 183, 186 (R.I. 1988), abrogated on other grounds by State v. Jackson, 752 A.2d 5 (R.I. 2000); second, wantonness has been recognized to include reckless conduct, see State v. Gilligan, 23 R.I. 400, 50 A. 844, 847 (1901); and third, the First Circuit has instructed us that an offense that may be completed recklessly is not a violent felony as that term is defined by the ACCA, see United States v. Fish, 758 F.3d 1, 16 (1st Cir. 2014).

I. Modified Categorical Approach

To determine whether an offense qualifies as a violent felony, the Court may "look only to the fact of conviction and the statutory definition of the prior offense," which is termed the "categorical approach." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). To satisfy the force clause under the categorical approach, the use, attempted use, or threatened use of violent force must be an element of the prior offense. See Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2293, 186 L.Ed.2d 438 (2013). If a conviction for the offense is possible without proof of attempted, threatened, or actual use of violent force, then the conviction does not qualify as a violent felony, even if the defendant in fact used, attempted to use, or threatened to use violent force in the commission of the crime. See id. The facts of the defendant's crime do not matter, only the elements of the offense do.

Applying the categorical approach is simple when a statute sets out a single set of elements that defines a single crime but becomes complicated when the statute lists several alternative elements defining multiple crimes. Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). In the latter case, the Court cannot tell which elements comprised the defendant's conviction just by looking at the statutory text. Descamps, 133 S.Ct. at 2279. To address that problem, the Court approved the "modified categorical approach," which permits looking at a limited class of documents — often called Shepard-approved documents — for the sole purpose of determining the defendant's relevant offense under a divisible statute. Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). There is one hoop that courts must jump through before applying the modified categorical approach, which is determining whether the statute is divisible.

A. Divisibility

The threshold determination about a statute's divisibility requires the Court to decide if the statute lists alternative elements (i.e., it is divisible) or instead enumerates various factual means of committing a single element (i.e., it is indivisible). Mathis, 136 S.Ct. at 2256 ("The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means."). If the statute lists various means of committing a single element, then the court must stick to the categorical approach. However, if the statute lists alternative elements, then courts may apply the modified categorical approach to determine the actual offense underlying the defendant's conviction.

In Mathis, the Supreme Court easily deciphered the means versus elements conundrum because the state's highest court had previously resolved the question. Id. The issue is also simple when statutory alternatives carry different punishments — those must be elements. Id. In some situations, "a statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means)." Id. When the statute does not address the question, courts should look to state law for answers, as did the Mathis Court. Id.

B. Rhode Island's Statute

The Defendants, except for Lee, were each convicted of R.I. Gen. Laws § 11-5-2, titled "Felony Assault." Subsection (a) of the statute states: "Every person who shall make an assault or battery, or both, with a dangerous weapon, or with acid or other dangerous substance, or by fire, or an assault or battery which results in serious bodily injury, shall be punished by imprisonment for not more than twenty (20) years." R.I. Gen. Laws § 11-5-2(a). The first order of business is to tackle Mathis' means versus elements distinction.

This statute is not the model of clarity, and the statute does not identify on its face whether it lists means or elements. The Rhode Island Supreme Court, however, has recognized at least two distinct crimes under this statute. These are assault with a dangerous weapon (ADW), see, e.g., Jeremiah, 546 A.2d at 186; State v. Tillery, 922 A.2d 102, 107 (R.I. 2007), and assault resulting in serious bodily injury, see, e.g., State v. Scanlon, 982 A.2d 1268, 1278 (R.I. 2009). Furthermore, a conviction for assault with a dangerous weapon may be based on a theory of assault, battery, or both. See State v. Soler, 140 A.3d 755, 763 (R.I. 2016) (recognizing that an ADW conviction could be based on a battery theory).

Therefore, the Court concludes that R.I. Gen. Laws § 11-5-2 is divisible and that at least one of the offenses contained within that statute is ADW. The Court further concludes that the act element of ADW can be accomplished by the means of an assault, a battery, or both.

C. The Defendants' Convictions

The next question is whether the Government has produced Shepard-approved documents proving that each Defendant was convicted of assault with a dangerous weapon, rather than some other offense possible under R.I. Gen. Laws § 11-5-2. This is a defendant-specific inquiry. In cases settled by plea, the court may look to "a transcript of [a] plea colloquy or [a] written plea agreement presented to the court, or ... a record of comparable findings of fact adopted by the defendant upon entering the plea" to make this determination. Shepard, 544 U.S. at 20, 125 S.Ct. 1254. Moreover, for most of the Defendants, the Government has produced the judgments of conviction demonstrating that the Defendants were convicted of "assault with a dangerous weapon," which leaves no question as to the offense of conviction.

The Government has produced sufficient documents to prove that each Defendant (except Lee) was convicted for ADW.6 For Lee, the Government has proved that he was convicted of an offense that is functionally similar to ADW.7 In sum, the Government has produced sufficient Shepard-approved documents to meet its burden as to each Defendant.

II. Categorizing Assault with a Dangerous Weapon

This takes us to the central question in these motions: does assault with a dangerous weapon under R.I. Gen. Laws § 11-5-2 qualify as a violent felony as it is defined by the ACCA? More specifically, does the crime of ADW in Rhode Island have as an element the use, attempted use, or threatened use of violent force against the person of another? The Defendants' argument that it does not proceeds in two steps. First, they argue that in Rhode Island, assault with a dangerous weapon may be accomplished with a mere recklessness mens rea. Second, they argue that the words "use against the person of another" in the ACCA require that a person act with a mens rea higher than recklessness. The Defendants conclude that Rhode Island's ADW offense does not categorically have as an element the use, attempted use, or threatened use of violent force, and therefore cannot serve as a predicate under the ACCA. Although it is somewhat of a close call upon which reasonable minds could differ, the Court agrees with the Defendants' conclusion.

A. Recklessness Is Sufficient for State Conviction of ADW

Our task is first to determine the minimum mens rea necessary to sustain a conviction for ADW in Rhode Island. To do this, we look to the Rhode Island Supreme Court's construction of its state law. See United States v. Hart, 674 F.3d 33, 41 (1st Cir. 2012).

The Rhode Island Supreme Court defines assault with a dangerous weapon as an "unlawful attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness." Jeremiah, 546 A.2d at 186 (emphasis added); see also Supp. Mem. Ex. D at 1, Rose, No. 06-45, ECF No. 31-4 [hereinafter Rhode Island ADW Pattern Instructions] (adopting the definition stated in Jeremiah); Supp. Mem. Ex. B at 78:6-12, Rose, No. 06-45, ECF No. 31-2 [hereinafter State v. Soler Jury Instr. Tr.] (defining assault with a dangerous weapon, in part as "an unlawful attempt or offer with force or violence to do a corporal hurt to another, whether from malice or wantonness," with no further definition of "wantonness"). Malice is clearly the more culpable mens rea as between "malice or wantonness." See State v. Gilligan, 23 R.I. 400, 50 A. 844, 847 (1901) (defining malice as "[t]he doing a wrongful act intentionally, without just cause or excuse; a wicked and mischievous purpose, which characterizes the perpetration of an injurious act without lawful excuse"). Therefore, our analysis must focus on how the Rhode Island Supreme Court has defined "wantonness."

The authority here is sparse, to be sure, but the decisions of the Rhode Island Supreme Court suggest that "wantonness" is synonymous with "recklessness." In 1901, the Rhode Island Supreme Court described an offense done wantonly as an act "[d]one in a licentious spirit, perversely, recklessly, without regard to propriety or the rights of others; careless of consequences, and yet without settled malice." Id. at 847 (emphasis added). In a more recent case, in the context of manslaughter, the Rhode Island Supreme Court again defined wanton and reckless conduct synonymously as conduct where the defendant "did not contemplate [the] result." See State v. Hallenbeck, 878 A.2d 992, 1005 (R.I. 2005) ("Manslaughter is the unlawful but unintentional killing of a human being without malice aforethought or premeditation. A person who wantonly or recklessly does an act which results in the death of another human being is guilty of manslaughter, even though he did not contemplate such a result.").8

Moreover, the Rhode Island Model Jury Instructions do not contain a definition of wantonness; rather the instruction simply states that ADW can be committed with either malice or wantonness. See Rhode Island ADW Pattern Instruction, Rose, No. 06-45, ECF No. 31-4; see also State v. Soler Jury Instr. Tr. at 78:6-12, Rose, No. 06-45, ECF No. 31-2. While we acknowledge that a modern Rhode Island trial justice or jury might not intuitively understand wantonness to mean what the Supreme Court said it meant in 1901, it is the Supreme Court's statement and not our modern intuitions that must control.

The Government relies on a couple of Rhode Island Supreme Court cases suggesting that ADW requires intent to do harm. See, e.g., Gov't Resp. at 5, Sabetta, No. 00-135, ECF No. 143 (first citing State v. Clifton, 777 A.2d 1272, 1277 (R.I. 2001) (noting that the evidence in an ADW case "could sufficiently support an objective inference that Clifton possessed the required criminal intent to harm" a victim); and then citing State v. Franco, 750 A.2d 415, 418 n.2 (R.I. 2000) (noting that a count of ADW was dismissed at the close of evidence because there was no evidence of intent to do bodily harm)). Those cases, however, are aberrations in Rhode Island case law. The Rhode Island Supreme Court has consistently defined ADW and simple assault as "general intent" crimes. See State v. Speaks, 691 A.2d 547, 550-51 (R.I. 1997) (explaining that specific intent is not required for ADW); see also Rhode Island ADW Pattern Instruction at 1 n.42, Rose, No. 06-45, ECF No. 31-4 ("Assault with a Dangerous Weapon is defined as a general-intent type crime."); State v. Lomba, 37 A.3d 615, 620 (R.I. 2012) (describing simple assault as a "general intent crime"). A general intent crime "require[s] only the intent to make bodily movement which constitutes the acts which the crime requires." State v. Kausel, 68 A.3d 524, 531 (R.I. 2013). Put another way, a general intent offense requires only the "intentional commission of a reckless act." Fish, 758 F.3d at 16 (discussing Massachusetts ADW). That ADW is a general-intent crime is consistent with the conclusion that "wanton" means no more than "reckless" in Rhode Island.

Our conclusion is also bolstered by other courts. The Ninth Circuit has also concluded (albeit without extensive analysis) that Rhode Island's ADW requires proving only a recklessness mens rea. United States v. Garcia-Jimenez, 807 F.3d 1079, 1085 n.5 (9th Cir. 2015) ("Rhode Island's case law does not define `wanton' to mean something more than recklessness."); see also Smith v. Wade, 461 U.S. 30, 39 n.8, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (equating wantonness with recklessness).

Prior First Circuit case law addressing whether Rhode Island ADW is a violent felony does not alter our conclusion. In United States v. Franco, without further analysis, the court stated that "[b]y definition, [Rhode Island ADW] `has as an element the use, attempted use, or threatened use of physical force against the person of another.'" 993 F.2d 1531, at *2 (1st Cir. 1993). The issue of mens rea was not discussed in the opinion. In a second case, Campos-Gomez v. Mukasey, 298 Fed.Appx. 22, 23-24 (1st Cir. 2008), the First Circuit examined the sole case offered by the defendant, State v. Stone, 20 R.I. 269, 38 A. 654 (1897), and no others. Since Campos-Gomez and Franco were decided before the Supreme Court and the First Circuit fully fleshed out the definition of "physical force" in the ACCA's force clause, see Johnson v. United States (Johnson I), 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and the mens rea required to satisfy that definition, see Fish, 758 F.3d at 16, and because Campos-Gomez and Franco did not address the arguments the Defendants raise here, the Court is not bound by them. See Greenier v. Pace, Local No. 1188, 201 F.Supp.2d 172, 177 (D. Me. 2002) ("To the extent that the Court is unable to reconcile pre-existing First Circuit precedent with the Supreme Court's holding in an intervening case, the Court must follow the dictates of the Supreme Court."); cf. United States v. Rehlander, 666 F.3d 45, 47 (1st Cir. 2012) (holding that prior circuit panel decisions "are binding on subsequent panels but not where intervening Supreme Court precedent requires reconsideration" (citing United States v. Rodríguez, 527 F.3d 221, 224-25 (1st Cir. 2008))).

We recognize that this a close call, and our conclusion is not free from doubt. The Rhode Island Supreme Court is the keeper of its criminal law; it could very well clarify this area of the law in the future and determine both that wantonness means something more than recklessness (a kind of junior varsity malice) and that recklessness is not sufficient to satisfy a conviction for ADW. Such a holding would not be unreasonable for a variety of reasons that we need not explore, but given the pressing nature of the issue before us and the Defendants' objection to certifying the question, we are left with what the court has said, albeit 115 years ago. See Mot. to Vacate Hr'g Tr. at 53:14-54:14, Weems, No. 00-142, ECF No. 220. Put simply, the words of the Rhode Island Supreme Court, coupled with the rule of lenity, see Whitman, 135 S.Ct. at 353 ("The rule of lenity requires interpreters to resolve ambiguity in criminal laws in favor of defendants."), leads us to conclude firmly that the Defendants are correct that recklessness is sufficient to satisfy a conviction for Rhode Island ADW.9

We next ask whether this requirement is sufficient to categorize Rhode Island ADW as a violent felony under the ACCA.

B. Recklessness Is Insufficient under the ACCA

Under First Circuit precedent, a crime that only requires proving a recklessness mens rea with respect to the attempted, threatened, or actual use of force against the person of another does not qualify as a violent felony under the ACCA's force clause. See United States v. Fish, 758 F.3d 1, 16 (1st Cir. 2014) (analyzing the force clause in 18 U.S.C. § 16(b)). In Fish, the First Circuit held that Massachusetts Assault and Battery with a Dangerous Weapon (ABDW) is not a crime of violence under 18 U.S.C. § 16(b) because its elements can be satisfied by the "intentional commission of a reckless act." Id. Similarly, we conclude that Rhode Island's ADW is not a violent felony under the ACCA.

In Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the United States Supreme Court held that an offense that requires only a mens rea of negligence does not qualify as "a crime of violence" under 18 U.S.C. § 16, which is phrased similarly to the ACCA. See United States v. Hudson, 823 F.3d 11, 16 (1st Cir. 2016) (describing 18 U.S.C. § 16 and the ACCA as "similarly worded federal statute[s]"). The Court reasoned that the word "use" in that statute "most naturally suggests a higher degree of intent than negligent or merely accidental conduct," because of its context (it is defining a crime of violence) and because of the terms surrounding it (it is contemplating applying physical force against another). Leocal, 543 U.S. at 9, 125 S.Ct. 377 (citation omitted).

While Leocal left open the question of "whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence," id. at 13, 125 S.Ct. 377, the First Circuit has since answered that question in the negative. See Fish, 758 F.3d at 9 ("Although the Supreme Court explicitly limited its reasoning to negligence-or-less crimes, Leocal's rationale would seem to apply equally to crimes encompassing reckless conduct wherein force is brought to bear accidentally, rather than being actively employed."). The Fish court concluded that because the Massachusetts ABDW offense can be committed with the "intentional commission of a reckless act," it does not require a sufficient mens rea to be a "crime of violence." Id. at 16.

Strictly speaking, Fish's holding applied only to the definition of the word "use" in 18 U.S.C. § 16(b), which is the statute's residual provision defining a "crime of violence." 758 F.3d at 9. The logic of the opinion, however, extends to the use of that word in the statute's force clause, 18 U.S.C. § 16(a), and therefore to the ACCA's force clause, 18 U.S.C. § 924(e)(2)(B)(i), which defines a "violent felony." Other cases have made those connections. In United States v. Holloway, the First Circuit held that a conviction under Massachusetts's simple assault and battery statute does not qualify as a violent felony under the ACCA's residual clause because it can be satisfied by a mens rea of recklessness. 630 F.3d 252, 261 (1st Cir. 2011). And in United States v. Hudson, the First Circuit considered whether Massachusetts's ADW statute required a sufficient mens rea to qualify as a violent felony under the ACCA in light of Fish. 823 F.3d at 15-18. Finding that Massachusetts's ADW could not be committed with mere recklessness, but instead required "specific intent," the Hudson Court concluded that the statute did require a sufficient mens rea to qualify as a violent felony. Id. at 17.10

Even more recently, in Bennett v. United States, one of our sister district courts set aside a sentence pursuant to 28 U.S.C. § 2255 precisely because at least one of the movant's convictions required only a recklessness mens rea, which that court found to be insufficient for the purposes of the ACCA. Docket Nos. 1:16-CV-251-GZS, 2016 WL 3676145, at *3 (D. Me. July 6, 2016) ("The Court necessarily acknowledges that most decisions to address the question have found that a conviction that requires a mens rea of only recklessness does not satisfy ACCA's force clause." (citing United States v. Parnell, 818 F.3d 974, 981 & n.5 (9th Cir. 2016); United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015); United States v. Duran, 696 F.3d 1089, 1095 (10th Cir. 2012); Holloway, 630 F.3d at 261-62; United States v. McMurray, 653 F.3d 367, 374-75 (6th Cir. 2011); Cutshaw v. United States, No. 209CR70RLJMCLC1, 2016 WL 3212269, at *2 (E.D. Tenn. June 7, 2016))). In light of the First Circuit's precedents on the issue, we see no other conclusion that the Bennett court could have reached.

Bennett also grappled with one of the Government's arguments here, that the United States Supreme Court's recent ruling in Voisine v. United States, ___ U.S. ___, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016), requires a contrary result. Bennett, 2016 WL 3676145, at *3. We are persuaded by our sister court's conclusion that it does not. See id. at *4. Voisine dealt with a congressional enactment that "close[d] a dangerous loophole" in gun control laws by barring perpetrators of domestic violence who are convicted only of misdemeanors from possessing firearms or ammunition. 136 S.Ct. at 2276; see also 18 U.S.C. § 922(g)(9). The statute defined a "misdemeanor crime of domestic violence" to include any misdemeanor that has physical force as an element, in language very similar to the ACCA's force clause. Compare ACCA, 18 U.S.C. § 924(e)(2)(B)(i) ("has as an element the use, attempted use, or threatened use of physical force against the person of another") with 18 U.S.C. § 921(a)(33)(A)(ii) ("has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by [certain close relations or family members] of the victim"). The Supreme Court held that offenses requiring only a recklessness mens rea could satisfy the definition of a misdemeanor crime of domestic violence. Voisine, 136 S.Ct. at 2280.

There are three reasons why Voisine does not require the inference that a "violent felony" under the ACCA's force clause could also be committed with a mere recklessness mens rea. First, the Voisine Court explicitly stated that "our decision today concerning § 921(a)(33)(A)'s scope does not resolve whether § 16 includes reckless behavior. Courts have sometimes given those two statutory definitions divergent readings in light of differences in their contexts and purposes, and we do not foreclose that possibility with respect to their required mental states." Id. at 2280 n.4. That means that the First Circuit's holding in Fish that recklessness is insufficient under § 16's definition of "crime of violence," and the implicit application of that holding to the ACCA's definition of "violent felony" in Hudson, continue to be binding in this Circuit.

Second, the United States Supreme Court had previously defined terms that are used identically in the ACCA and the Misdemeanor Domestic Violence Act to have different meanings. In Johnson I, the Supreme Court held that the term "physical force" as it is used in the ACCA means "violent force," because it is describing a violent felony. 559 U.S. at 140, 130 S.Ct. 1265; see also United States v. Lawrence, 627 F.3d 1281, 1284 (9th Cir. 2010) ("[T]he term `violent felony' suggests a category of violent, active crimes." (citations omitted)). The Supreme Court refused to extend that definition to the Misdemeanor Domestic Violence Act, determining that in that Act, the term "physical force" includes "any offensive touching, no matter how slight." United States v. Castleman, ___ U.S. ___, 134 S.Ct. 1405, 1417, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring in part and concurring in judgment).

The Supreme Court gave three reasons for interpreting identical language in the two acts differently. One, Congress likely intended a lesser meaning of force for a statute aimed mostly at assault and battery laws, which themselves often require only the common law definition of force for conviction. Id. at 1411. Two, the term "violent felony" connotes a higher degree of force than the term "domestic violence" because the latter "encompass[es] acts that one might not characterize as `violent' in a nondomestic context." Id. at 1411-12. Three, the type of force that designates one an armed career criminal would logically be higher than the type of force that defines a domestic abuser. Id. at 1412. The unifying theme in the Supreme Court's reasoning is that when Congress defines a misdemeanor, it intends a lower bar for culpability than when it defines a felony, even when it uses some of the same words to describe both types of offenses. In the same vein, the lower mens rea sufficient for a predicate misdemeanor is not necessarily sufficient for a violent felony.

Third, in Voisine and Castleman, the Supreme Court worried about adopting a definition that would render the Misdemeanor Domestic Violence Act entirely inoperable in a large number of states. See Castleman, 134 S.Ct. at 1413 ("if offensive touching did not constitute `force' under § 921(a)(33)(A), then § 922(g)(9) would have been ineffectual in at least 10 States — home to nearly thirty percent of the Nation's population"); see also Voisine, 136 S.Ct. at 2280 ("petitioners' reading risks rendering § 922(g)(9) broadly inoperative in the 35 jurisdictions with assault laws extending to recklessness"). That issue arises because § 921(a)(33)(A) was aimed at misdemeanor crimes of domestic violence, which are most often assaults or batteries. The same concern does not apply to interpreting the force clause in the ACCA to require a mens rea higher than recklessness. Congress was certainly not targeting crimes that require only a recklessness mens rea in crafting the ACCA, and plenty of predicate crimes still qualify as violent felonies in every state, even though recklessness is insufficient under the force clause.

In conclusion, Voisine did not disturb the First Circuit's decisions about the mens rea required for a violent felony under the ACCA. Crimes requiring proof of only a recklessness mens rea for the application of force do not have as an element the use, attempted use, or threatened use of violent force. When a person purposely creates force and recklessly applies it, that person cannot categorically be said to attempt, or threaten, or actually use force against the person of another, as required by the statute. See Fish, 758 F.3d at 16 (holding that the intentional commission of a reckless act is not sufficient to qualify as a crime of violence).11 Therefore, a crime that requires proof of a mens rea of only recklessness, such as Rhode Island's assault with a dangerous weapon, is not categorically a violent felony under the ACCA.12

III. Procedural Default

The Government's final argument in opposition to these motions is that the Defendants have procedurally defaulted their challenges based on Johnson II because they did not raise the constitutionality vel non of the ACCA's residual clause at sentencing or on direct appeal.13

Under 28 U.S.C. § 2255, a defendant may be entitled to post-conviction relief from a sentence "in four instances: if the sentence `(1) was imposed in violation of the Constitution, or (2) was imposed by a court that lacked jurisdiction, or (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack.'" United States v. Duval, 957 F.Supp.2d 100, 105-06 (D. Mass. 2013) (quoting David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)) (citations omitted); see also 28 U.S.C. § 2255(a)-(b).14 Because finality in criminal proceedings is favored, "[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either `cause' and actual `prejudice,' or that he is `actually innocent.'" Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citations omitted). None of the instant Defendants asserts actual innocence.

A defendant establishes cause where his or her claim is "so novel that its legal basis is not reasonably available to counsel." Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). "[A] rule requiring a defendant to raise a truly novel issue is not likely to serve any functional purpose." Id. at 15, 104 S.Ct. 2901. In Reed, a case involving a defendant's failure to raise a novel constitutional issue during his state court proceedings and appeal, the Supreme Court explained that, "if we were to hold that the novelty of a constitutional question does not give rise to cause for counsel's failure to raise it, we might actually disrupt [lower court] proceedings by encouraging defense counsel to include any and all remotely plausible constitutional claims that could, some day, gain recognition." Id. at 15-16, 104 S.Ct. 2901. But, while binding precedent may render an issue novel at times, "futility cannot constitute cause if it means simply that a claim was `unacceptable to that particular court at that particular time.'" Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)).

Thus, the inquiry here is whether the state of the law at the time of each of the Defendants' sentencings and direct appeals was such that they did not have a "reasonable basis" upon which to challenge the constitutionality of the ACCA's residual clause. Where a decision of the United States Supreme Court (1) "explicitly overrule[s] one of [its own] precedents" or (2) "overturn[s] a longstanding and widespread practice to which the Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved," it follows that "there will almost certainly have been no reasonable basis upon which an attorney previously could have urged" the lower court to adopt the position that the Supreme Court ultimately adopts. Reed, 468 U.S. at 17, 104 S.Ct. 2901. In those circumstances, then, a defendant's failure to raise the issue is sufficiently excusable and the cause requirement is satisfied. Id.15

In 2007, the Supreme Court, in James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), held that the residual clause of the ACCA was not unconstitutionally vague. This issue had not been raised and argued by the parties, but instead, it was suggested by Justice Scalia in dissent. See id. at 210, 127 S.Ct. 1586 n.6 ("While ACCA requires judges to make sometimes difficult evaluations of the risks posed by different offenses, we are not persuaded by Justice Scalia's suggestion — which was not pressed by James or his amici — that the residual provision is unconstitutionally vague."). Four years later, in Sykes v. United States, Justice Scalia dissented and again raised the issue of vagueness without prompting from the parties. 564 U.S. 1, 28, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (Scalia, J., dissenting) ("We should admit that ACCA's residual provision is a drafting failure and declare it void for vagueness.").

Not until 2015, in Johnson II, did the Supreme Court receive full briefing and hear argument on the vagueness issue. Johnson II, 135 S.Ct. at 2556. For the third time, the issue was not raised by the parties. Rather, after argument, the Court sua sponte directed the parties to address whether the ACCA's residual clause was unconstitutionally vague. Id. In explicitly overruling James and Sykes, and in justifying its decision to depart from stare decisis, the Court emphasized that the issue had not been fully developed until Johnson II. Id. at 2562-63 ("But James and Sykes opined about vagueness without full briefing or argument on that issue — a circumstance that leaves us `less constrained to follow precedent[.]'" (quoting Hohn v. United States, 524 U.S. 236, 251, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998)).

With this backdrop in place, each of the instant Defendants has established cause for failing to raise his constitutional claim at the time of sentencing and direct appeal. For those sentenced before James (viz., Rose, Weems, Sabetta, Rodriguez, and Paige), the Supreme Court had not spoken on the vagueness issue, and thus Johnson II represents a departure from a "longstanding and widespread practice" of which the lower courts had expressed near-unanimous approval. See Reed, 468 U.S. at 17, 104 S.Ct. 2901. For the two Defendants sentenced after James (viz., Lee and Young), Johnson II represents an explicit overruling of Supreme Court precedent. Id. Though the Government would have us accept that the state of the law rendered these Defendants' claims futile, not novel, the distinction between novelty and futility is plain here: the Government does not point to, and the Court is not aware of, a single case that had held the ACCA's residual clause unconstitutionally vague before Johnson II. That is, the claim was not viable in any jurisdiction in the nation.16 Accordingly, there was "almost certainly ... no reasonable basis upon which [their attorneys] previously could have urged" the lower court to adopt the Supreme Court's holding in Johnson II. Reed, 468 U.S. at 17, 104 S.Ct. 2901.

Many of our brothers and sisters in the District of Massachusetts, as well as elsewhere, have also reached this result. See, e.g., United States v. Aponte, No. 11-CR-30018-MAP, 208 F.Supp.3d 347, 349, 2016 WL 5338505, at *1 (D. Mass. Sept. 22, 2016) ("Johnson explicitly overruled prior precedent and overturned longstanding and widespread — indeed virtually unanimous — prior authority."); Turner v. United States, 03-CR-10166-PBS, Hr'g Tr. 9:2-17, ECF No. 218 (D. Mass. Apr. 6, 2016); McFarlane v. United States, 05-CR-10130-RWZ, Hr'g Tr. 4:20-5:10, ECF No. 73 (D. Mass. Jan. 12, 2016); cf. United States v. Duval, 957 F.Supp.2d 100 (D. Mass. 2013) (holding that the legal basis for a challenge to the underlying ACCA predicate offense was not available to counsel because of the settled law of the Circuit on the issue). Accordingly, we find that the issue of whether the ACCA's residual clause was unconstitutionally vague was sufficiently novel to excuse each of the Defendants' failure to raise it at sentencing or on direct review.

Next, the Defendants must establish prejudice; they do so easily. For the reasons stated herein, the Court concludes that Rhode Island ADW does not constitute a violent felony under the ACCA's force clause. Therefore, if the Defendants were sentenced today, their sentences would have been statutorily capped at 120 months. Each Defendant received a sentence of at least 180 months.17 It necessarily follows that they have demonstrated prejudice.

Accordingly, Defendants Weems, Sabetta, Paige, Rodriguez, Rose, and Lee have demonstrated both cause and prejudice, and their claims for relief are not barred by procedural default.

CONCLUSION

Rhode Island's offense of Assault with a Dangerous Weapon, as codified in R.I. Gen. Laws § 11-5-2, is not a violent felony, as that term is defined by the ACCA. Therefore, the Court will schedule the Defendants, individually, for hearings on their motions to vacate and re-sentencings forthwith.

IT IS SO ORDERED.