United States v. Dancy, 248 F. Supp. 3d 292

Background

Willie Dancy was convicted in 2008 of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and sentenced as an Armed Career Criminal (ACCA) to the 15-year mandatory minimum based on two Massachusetts drug convictions and two violent-felony convictions (ABDW and ABPO).
The First Circuit had previously affirmed, treating ABPO as a violent felony under the ACCA residual clause; Dancy’s earlier habeas petition failed in 2012.
Johnson v. United States (2015) invalidated the ACCA residual clause; Welch (2016) made Johnson retroactive, and the First Circuit authorized Dancy to file a successive § 2255 petition.
Dancy argues ABDW and ABPO do not qualify under the ACCA’s force clause because each can be committed recklessly (not involving the requisite "use" of force).
The statutes are divisible (per First Circuit precedent in Tavares), so Shepard documents could show whether the convictions were for intentional rather than reckless variants; none were produced.
The key legal question became whether the reckless version of these Massachusetts offenses satisfies the ACCA force clause’s requirement of "use . . . of physical force against the person of another." The court concluded reckless variants do not qualify and vacated Dancy’s ACCA sentence.

Issues

Issue	Dancy's Argument	Government's Argument	Held
Whether reckless variants of ABDW/ABPO satisfy the ACCA force clause (use of physical force against the person of another)	Reckless mens rea does not amount to a "use" of force under the ACCA; therefore those convictions cannot be ACCA predicates	Reliance on Voisine: "use" can include reckless conduct; ABPO’s knowing-officer element and normal prosecutorial practice mean convictions are purposeful	Recklessness does not satisfy the ACCA force clause; absent Shepard documents showing intentional variants, ABDW and ABPO cannot serve as ACCA predicates
Whether ABDW and ABPO are divisible offenses (so court may consult Shepard documents)	Both offenses are divisible because Massachusetts law recognizes intentional and reckless variants	Government argued divisibility or that convictions reflect intentional conduct in the ordinary case	Court applied First Circuit precedent (Tavares/Beal) and treated the offenses as divisible; but no Shepard documents were produced, so divisibility did not save the predicates
Whether Voisine requires treating ACCA force clause differently than § 16/§ 921 provisions	Recklessness should not qualify under ACCA because ACCA’s phrase "against the person of another" requires active, purposeful employment of force	Government urged Voisine’s holding that "use" is indifferent to mens rea should control ACCA analysis	Court held Leocal/Fish line (requiring purposeful use when tied to "against the person of another") controls for the ACCA; Voisine does not compel a different result given different statutory context
Remedy—Was resentencing required?	Vacate ACCA sentence and resentence without ACCA enhancement	Argue ACCA predicates remain or that other predicates suffice	Court vacated the ACCA-based sentence and ordered resentencing absent Shepard proof of intentional predicates

Key Cases Cited

Johnson v. United States, 576 U.S. 591 (2015) (invalidated the ACCA residual clause)
Welch v. United States, 578 U.S. 120 (2016) (held Johnson retroactive on collateral review)
Voisine v. United States, 136 S. Ct. 2272 (2016) (held reckless misdemeanor domestic assault satisfies statutory "use" language in § 921(a)(33)(A)(ii))
Leocal v. Ashcroft, 543 U.S. 1 (2004) (interpreted "use" of force in context; required active employment against a person or property)
Mathis v. United States, 136 S. Ct. 2243 (2016) (explained divisible vs. indivisible statutes and use of Shepard documents)
Tavares v. United States, 843 F.3d 1 (1st Cir. 2016) (held Massachusetts ABDW divisible and analyzed recklessness issue)
Fish v. United States, 758 F.3d 1 (1st Cir. 2014) (held reckless ABDW insufficient under similar statutory language)