Escolar Documentos
Profissional Documentos
Cultura Documentos
Before
Torruella, Dyk,* and Kayatta,
Circuit Judges.
See 18
daytime, see Mass. Gen. Laws ch. 266, 17-18, breaking and
entering at night, see id. 16, assault and battery with a
dangerous weapon, see id. ch. 265, 15A(b), and possession of a
burglarious instrument, see id. ch. 266, 49.
Notwithstanding
-2-
The
After
cooperating
witness
bulletproof vests.
the
cooperating
that
Fish
was
offering
to
sell
six
witness
and
purchased
five
vests,
which
the
from
its
Massachusetts,
vehicle.
had
The
traveled
vests,
interstate
manufactured
for
sale
outside
in
the
Commonwealth.
A federal grand jury eventually returned an indictment
charging Fish with a single count of possessing body armor in
violation of 18 U.S.C. 931(a), the federal body armor statute,
which prohibits any person who "has been convicted of a felony that
is . . . a crime of violence (as defined in [section 16])" from
possessing body armor that has been "sold or offered for sale[] in
interstate or foreign commerce." See also 18 U.S.C. 921(a)(35).
Fish moved to dismiss the indictment, claiming that none of his
prior
convictions
qualified
as
-3-
"crime
of
violence"
under
section 16, and that the body armor statute was unconstitutional.
In response, the government argued that Fish's convictions for
assault and battery with a dangerous weapon and breaking and
entering all qualified as crimes of violence under section 16, and
that the body armor statute was constitutional.
The district court denied the motion to dismiss, finding
that "[a]t a minimum, the convictions for breaking and entering
satisfy the requirement[s of section 16]." The court also rejected
Fish's
challenge
statute.
to
the
constitutionality
of
the
body
armor
See Aguiar
crimes
of
violence.
Rather,
-4-
section
16
sets
forth
two
The
follows:
-5-
Adding further
See U.S.S.G.
-6-
that
clearly
meets
one
or
both
of
the
section
16
For example, in
Their
(2005).
The first set of rules to be applied forms what is known
as the "categorical" approach. Aguiar v. Gonzales, 438 F.3d 86, 88
(1st Cir. 2006).
-7-
for
which
the
defendant
was
previously
convicted
with
that is, they encompass conduct that does not require all the
elements necessary to render the offense a predicate--we are
sometimes authorized to apply the "modified" categorical approach.
Under
that
approach,
we
first
determine
whether
the
prior
Descamps, 133
at 2281-82.
Third, in assessing whether the elements of the candidate
proposed as a predicate crime are overbroad, we need not consider
fanciful, hypothetical scenarios.
549 U.S. 183, 193 (2007) ("[T]o find that a state statute creates
-9-
statute
requires
more
than
the
application
of
legal
U.S. 192, 208 (2007) ("We do not view [the categorical approach] as
requiring that every conceivable factual offense covered by a
statute must necessarily present a serious potential risk of injury
before the offense can be deemed a violent felony.").
approaches
remain
stringent:
they
are
governed
by
basic
corresponds
in
substance
-10-
to
the
generic
meaning
of
burglary.").
argues that even though the records of the former conviction state
only that Fish was convicted of a "B&E Daytime," one could conclude
from them that Fish had been convicted under a statute, Mass. Gen.
Laws ch. 266, 17, which requires as an element that a person
lawfully in the structure broken into have been put in fear.
Before oral argument, however, the government submitted a Rule
28(j) letter in which it withdrew that interpretation of the
records of conviction. Then, at oral argument, the government said
it had "trouble making sense of" the records of conviction as they
related to the statute, ultimately conceding that we should analyze
the least culpable conduct that qualifies as daytime B&E, see
Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir. 2006).
Because that
-11-
Id. at 16;
the use of force, e.g., Commonwealth v. Burke, 392 Mass. 688, 68890 (1984), but instead may involve simply walking through an
unlocked door, see Commonwealth v. Tilley, 355 Mass. 507, 508
(1969), the government does not argue that either of Fishs B&E
convictions qualifies as a crime of violence under section 16(a),
which is limited to felonies having "as an element," the "use,
attempted use, or threatened use of physical force."
We therefore
approach
to
include
only
"night-time
burglary
of
-12-
United States v. Farrell, 672 F.3d 27, 37 (1st Cir. 2012), that in
light of Brown, a district court had committed plain error by
holding that Massachusetts' section 18, the daytime B&E statute,
was a "violent felony" under the Armed Career Criminal Act, 18
U.S.C. 924(e).
We based our holding in Brown almost entirely on the
breadth
of
the
"building"
element
under
Massachusetts
law.
Acknowledging that the term "includes not just stores and office
buildings but an array of structures--detached garages and storage
facilities, for example--that may invite theft of property but
would only rarely expose individuals to violence," we found the
"threat of violence" in "so broadly defined a universe" to be
"fairly speculative."
We noted that
Id. at 37.
is
fair
point.
The
problem,
though,
is
that
the
And
application
of
"ordinary
case"
approach,
the
-14-
But
Id.
And
since we already held in Brown and Farrell that the breaking and
entering statutes at issue here are broader than generic burglary
and do not present a requisite risk of the type with which Leocal
was in fact concerned--that is, the risk of harm to persons--we
fail to see how Leocal supports the governments position.
Having twice determined that the Massachusetts breaking
and entering statutes, applying as they do to nonviolent entries of
rarely-occupied structures through unlocked doors or windows, do
not necessarily involve conduct that would pose a risk of physical
injury or of the use of force, we now hold that Fish's prior
convictions for daytime B&E and nighttime B&E are not categorically
crimes of violence under section 16(b).
B.
-15-
crime of violence.
As we have
clause,
18
U.S.C.
924(e)(2)(B)(i),
that
"the
phrase
And
-16-
2012), it does not have "as an element the use" of physical force.3
As a result, it is overbroad.
The government therefore focuses its argument on section
16(b),
which
employed.
contains
no
requirement
that
violent
force
be
As we explained in Hart,
bodily injury.
argument that "the 'use' of force does not incorporate any mens rea
component."
Id.
It is
striking
uniformity,
that
section
-18-
16(b)
does
not
reach
recklessness offenses.4
the same.
So the key question is whether Massachusetts ABDW allows
convictions based on mere recklessness. The answer is clearly yes,
as long as the recklessness causes non-trivial bodily harm.
Commonwealth
E.g.,
Indeed, "[i]n
See Jobson v. Ashcroft, 326 F.3d 367, 373 (2d Cir. 2003);
Tran v. Gonzales, 414 F.3d 464, 469-70 (3d Cir. 2005) ("[U]se of
force is an intentional act."); Bejarano-Urrutia v. Gonzales, 413
F.3d 444, 447 (4th Cir. 2005) ("[T]he conclusion of the Leocal
Court that 'in no ordinary or natural sense can it be said that a
person risks have to use physical force against another person in
the course of operating a vehicle while intoxicated and causing
injury' strongly indicates that the result in Leocal would have
been the same even had a violation of the statute there at issue
required recklessness rather than mere negligence."); United States
v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) (felony driving while
intoxicated does not qualify under section 16 because it does not
necessarily involve intentional use of force or recklessness as to
the possibility of intentional use of force); United States v.
Portela, 469 F.3d 496 (6th Cir. 2006) ("[A] crime requiring only
recklessness does not qualify as a 'crime of violence' under 18
U.S.C. 16."); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560 (7th
Cir. 2008) ("Today we join our sister circuits and hold that
reckless crimes are not crimes of violence under Section 16(b)");
United States v. Torres-Villalobos, 487 F.3d 607, 615 (8th Cir.
2007) (reckless manslaughter not a "crime of violence" after
Leocal); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-30 (9th
Cir. 2006) (cited in Covarrubias Teposte v. Holder, 632 F.3d 1049
(9th Cir. 2010) (intentionally discharging firearm with reckless
disregard as to whether it will hit an inhabited dwelling is not a
crime of violence)); United States v. Zuniga-Soto, 527 F.3d 1110,
1124 (10th Cir. 2008) ("[R]ecklessness falls into the category of
accidental conduct that the Leocal Court described as failing to
satisfy the use of physical force requirement under either of
16's definitions of 'crime of violence.'"); United States v.
Palomino Garcia, 606 F.3d 1317, 1335-36 (11th Cir. 2010).
-19-
charged as ABDW."
The
under
ACCA's
residual
clause.
In
analyzing
ACCA's
Id.
v. Glover, 558 F.3d 71, 81 (1st Cir. 2009) (concluding that because
ABDW requires as an element that a defendant have effected a
touching with a dangerous weapon, the offense "ineluctably poses a
serious potential risk of physical injury").
-20-
see Dissenting Op. at 43, this is not the risk that must be
assessed in a section 16(b) analysis.
n.7 (holding that section 16(b) "plainly does not encompass all
offenses which create a 'substantial risk' that injury will result
from a person's conduct", because "[t]he 'substantial risk' in
16(b) relates to the use of force, not to the possible effect of
a person's conduct"); Aguiar, 438 F.3d at 88.
Having determined that ABDW posed a sufficient risk of
injury to qualify under ACCA's residual clause, we proceeded,
pursuant to the Supreme Court's analysis in Begay v. United States,
553 U.S. 137, 142 (2008), to inquire into whether ABDW was "roughly
similar in kind to the [offenses enumerated in ACCA's residual
clause]."
("[T]o
Hart, 674 F.3d at 43-44; see also Begay, 553 U.S. at 143
give
effect
to
every
clause
and
word
[of
18
U.S.C.
-21-
omitted).
674
F.3d at 44, and could therefore not defeat the conclusion that ABDW
was "typically" purposeful, violent, and aggressive.
We
need
not
question
Hart's
holding
as
Id.
to
ABDW's
at
all,5
the
test
looks
only
to
the
"usual
combinations.'"
offender,
may
of
course,
show
that
the
statute
was
so
applied . . . "); see also James v. United States, 550 U.S. 192,
208 (2007) (citing Duenas-Alvarez with approval and noting that
"[o]ne can always hypothesize unusual cases in which even a
prototypically violent crime might not present a genuine risk of
injury--for example, an attempted murder where the gun, unbeknownst
to the shooter, had no bullets.").
Finding no comfort in Hart's holding, the government
points out that our opinion in Hart employed language that can be
read to go beyond what Begay required.
Specifically, Hart's
-23-
James v.
disagree.
As an initial matter, the license the government would
draw from this language rests on dictum.
As we have explained,
2275
(2011)
("The
phrase
'purposeful,
violent,
and
observation
reckless,
in
Hart
that
vehicular
Because our
ABDW
"does
not
Any conclusion
See Koseiris v. Rhode Island, 331 F.3d 207, 213 (1st Cir.
government
concedes
that
Hart
is,
"to
be
-25-
Such
result
simply
cannot
be
what
Begay,
which
And in defining
not
"typical"
convictions.
or
do
not
represent
the
"majority"
of
having gone out of its way, in cryptic dictum, to violate James and
Duenas-Alvarez, we conclude that we would be bound to follow those
two Supreme Court cases over any dictum the government might find
to
the
contrary
"typically
in
Hart's
purposeful,
application
violent,
and
of
the
aggressive"
less-demanding
test.
See
generally United States v. Dancy, 640 F.3d 455, 470 (1st Cir.
2011).8
In so concluding, we acknowledge that at least one court
has, in an analogous situation, relied on James to find license
under the "ordinary case" approach to look only to what it imagined
might be the typical case of conviction, in the process ignoring a
state statute's overbreadth even in the face of actual applications
of
the
statute
to
conduct
that
failed
to
meet
the
textual
Such a
Though it is
Supreme Court took and decided the Descamps case, in which it yet
again clarified the ornate rules that govern the categorical and
modified categorical approaches, all in the service of a procedure
that ends with the excision of real applications of broad offenses
based on non-empirical determinations that they do not present the
ordinary case.
We are guided here not merely by the thrust of Descamps,
but by its language, as well. Descamps contains myriad warnings to
the effect that "[w]hether the statute of conviction has an
overbroad or missing element, the problem is the same: Because of
the mismatch in elements, a person convicted under that statute is
never convicted of the generic crime."
Id. at 2292.
In this case,
we
have
already
whitewashed
its
overbroad,
actual
applications.
To adopt that approach would ensnare us into deciding how
big a "minority" of actual convictions for unqualifying offenses
under an overly broad definition we may permissibly ignore.
One
-30-
Gut instinct?)").
A survey?
(A statistical
Expert evidence?
The
Aguiar
elements
tells
one
nothing
about
how
the
crime
is
the
hypothetical
statute
had
given
rise
to
hypothetical
circumstances,
the
statute
involved
"serious
-32-
on
the
assumption
that
an
"overwhelming
majority"
of
for
such
reckless
conduct
are
not
merely
hypothetical
-33-
Massachusetts
ABDW
survives
examination
under
Begay's
If
someone with Fish's record had asked whether he could lawfully buy
body armor, no one (other than five Supreme Court Justices) could
have confidently answered the question.
as
violent
felon
one
whose
conduct
no
jury
has
10
Burglarious Tools
The government points us last to Fish's prior conviction
While we
11
policy
in
proper
and
efficient
way
without
mandating
J.,
dissenting
from
denial
of
certiorari
and
so
and
lamenting
the
Supreme
Court's
difficulties
in
see, e.g., Sykes, 131 S. Ct. at 2284 (Scalia, J., dissenting), the
great variation between the different states' criminal statutes has
flummoxed the federal courts.
-37-
Convictions under
arises largely because many states have stretched these violenceconnoting rubrics to encompass conduct that Congress does not
define as a crime of violence.
So ordered.
-38-
12
I respectfully dissent.
I.
States, 133 S. Ct. 2276, 2281 (2013); James, 550 U.S. at 202;
Taylor v. United States, 495 U.S. 575, 588-89, 600-02 (1990).
The
court must consider the state law crime generically, i.e., with a
focus
on
the
elements,
rather
than
the
facts,
of
crime,
Descamps, 133 S. Ct. at 2285, except to the extent that the statute
of conviction is divisible and the charging and similar documents
reveal under which subdivision of the statute the conviction was
obtained.
This
-40-
physical force.
The
When
(emphasis added).
II.
This
court
in
Glover
held
that
the
ordinary
ABDW
holding that reckless driving, while within the scope of the ABDW
statute, is not the ordinary case under James and does not prevent
ADBW
from
being
crime
of
violence
under
the
categorical
approach.13
The precise question in Hart was whether ABDW is a
violent felony under the residual clause of the ACCA, which
13
enumerated
offenses,
crime
must
typically
v.
United
States,
553
U.S.
137,
To be similar to
involve
Id. at 41 (quoting
144-45
(2008)).
The
Id. at 44.
of the opinion:
ACCAs enumerated offenses must only typically
involve purposeful conduct, and so we must
look to the usual circumstances of the crime,
-42-
This
of Section 16(b), which does not differ from the ACCAs residual
clause in any relevant respects, the court need not concern itself
with reckless ABDW because it does not represent the vast majority
of ABDW convictions.
Id. at 43.
I disagree.
14
Cir. 2008); see also United States v. Herrick, 545 F.3d 53, 59-60
(1st Cir. 2008) (concluding that an offense requiring criminal
negligence did not meet the purposeful, violent, and aggressive
conduct requirement of Begay).
ABDW was a violent felony under the ACCA only by finding that
reckless driving was not the ordinary case under James (itself a
case under the ACCA residual clause), which is exactly what Hart
did.
typical[]
Begays
permissive.
case
standard,
which
is
more
Of course, that
It is also contrary to
the views of at least two other circuits which treat Begay and
James interchangeably. United States v. Dismuke, 593 F.3d 582, 594
(7th Cir. 2010) (under the ACCA, court must ask whether the crime,
in the ordinary or typical case, meets both prongs of Begay);
United States v. Stinson, 592 F.3d 460, 466 (3rd Cir. 2010) ([W]e
must
determine
scenario
whether
.
is
the
ordinary
sufficiently
or
typical
purposeful,
violent,
fact
and
-44-
both
Begay
and
James)).
Contrary
to
the
majority,
Begays
violent
extortion,
felony
as
involves
use
crime
of
that
is
explosives,
or
burglary,
arson,
otherwise
or
involves
924(e)(2)(B)(ii).
Majority Op. at
As I see it, there are only two differences between the two
provisions:
one,
the
ACCA
enumerates
certain
offenses
while
Section 16(b) does not, and two, the ACCA refers to a serious
potential risk of physical injury while Section 16(b) refers to a
substantial
risk
that
physical
force
against
the
person
or
-45-
Majority Op. at
Id.
But the
The Second
15
But Descamps
the ordinary case rule, and the parties in Descamps never suggested
that James should be overruled. We are obligated to follow Supreme
Court precedent until it is explicitly overturned.
Hohn v. United
States, 524 U.S. 236, 252-53 (1998) (Our decisions remain binding
precedent until we see fit to reconsider them, regardless of
whether subsequent cases have raised doubts about their continuing
vitality.).
IV.
In my view, the majoritys decision is inconsistent with
Hart and James.
I respectfully dissent.17
17