United States v. Faust, 869 F.3d 11

This opinion is Judge Lynch's dissent from the denial of a petition for panel rehearing in United States v. Faust, 853 F.3d 39 (1st Cir. 2017).
The Faust panel held Massachusetts assault and battery on a police officer (ABPO) is divisible and that its intentional form does not qualify as an ACCA "violent felony."
Faust suggested — relying on McNeill v. United States — that a sentencing court determining whether a prior conviction counts as an ACCA predicate should consult the law as it existed at the time of the prior state conviction.
The government sought panel rehearing to clarify whether the predicate-offense analysis is confined to precedents existing at the time of the defendant's prior conviction, warning that such a rule could complicate sentencing and turn divisibility analysis into an "archaeological dig."
Judge Lynch questions whether McNeill (which involved a legislative change in state law) governs situations where the statute is unchanged but judicial interpretations evolved, and he would grant rehearing to decide the temporal scope of the ACCA predicate inquiry.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Temporal scope of ACCA predicate-offense analysis: whether courts are limited to the law as of the time of the prior state conviction	Government: courts should not be strictly confined to only precedents existing at the time of the prior conviction; clarification needed to avoid unworkable results	Faust / Panel: following McNeill, look to the law as it applied at the time of the prior state conviction	Panel suggested limiting inquiry to law at time of prior conviction; rehearing was denied, but Judge Lynch dissented and would grant rehearing to resolve the issue

McNeill v. United States, 563 U.S. 816 (2011) (held ACCA predicate status should be assessed with reference to state law as it existed at the time of the defendant's state convictions in the face of a subsequent legislative change)
United States v. Faust, 853 F.3d 39 (1st Cir. 2017) (panel held MA ABPO divisible and its intentional form not an ACCA violent felony; suggested temporal-limit approach)
United States v. Tavares, 843 F.3d 1 (1st Cir. 2016) (set forth the circuit's "informed prophecy" approach for predicting how a state supreme court would rule on unsettled state-law questions)
DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) (noting that judicial construction of a statute ordinarily applies retroactively)
Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) (discussed retroactivity of judicial interpretations)