United States v. Fish
2014 U.S. App. LEXIS 3696
| 1st Cir. | 2014Background
- Fish possessed body armor after Massachusetts felony convictions, including four specific offenses; the district court held at least one qualified as a crime of violence under 18 U.S.C. § 16; Fish pled guilty with a Rule 11(a)(2) conditional plea preserving challenge on the § 16 determination; the government relied on four Massachusetts convictions (daytime B&E, nighttime B&E, assault and battery with a dangerous weapon, and burglarious instruments) as § 16 predicates; the court denied dismissal and Fish was sentenced to probation; the First Circuit reverses and remands for dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Daytime/Nighttime B&E are crimes of violence under § 16(b) | Fish contends B&E offenses lack § 16(b) risk of force | Government argues B&E falls within § 16(b) risk of force | No; both B&E offenses do not categorically qualify under § 16(b) |
| Whether ABDW is a crime of violence under § 16(b) | Fish argues ABDW lacks § 16(b) risk of force in ordinary cases | Government argues ABDW typically involves force and poses substantial risk | No; Massachusetts ABDW does not satisfy § 16(b) as applied here because it can rest on reckless conduct without actual force |
| Whether Burglarious Tools conviction is a crime of violence under § 16(b) | Fish argues the tools statute is overbroad and not a § 16(b) predicate | Government contends it could qualify under § 16(b) | No; the burglarious tools offense is overbroad and not a § 16(b) predicate |
| Proper approach to state-law predicates under § 16(b) (categorical/modified-categorical) | Hart and related decisions require faithful application of ordinary-case/risk framework | Government urges broader application under Begay and Hart | Court adheres to James/Duenas-Alvarez ordinary-case approach; cannot broaden § 16(b) beyond ordinary-case factor |
| Constitutional/Statutory considerations and overall holding | Because no predicate meets § 16, body armor conviction unconstitutional as to § 931 | Statutory framework may still allow predicates under § 16 | Fish’s conviction reversed; case remanded for dismissal |
Key Cases Cited
- Descamps v. United States, 570 U.S. 254 (2013) (modified categorical approach; overbreadth analysis for divisible statutes)
- James v. United States, 550 U.S. 192 (2007) (ordinary-case/typical fact scenario governing risk analysis under ACCA and § 16(b))
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (limits use of force to cases with active employment; rejects mere negligence for § 16(b))
- Begay v. United States, 553 U.S. 137 (2008) (typical conduct required to be similar in kind to listed offenses; purposeful, violent, and aggressive standard)
- Hart v. United States, 674 F.3d 33 (2012) (Massachusetts ABDW generally constitutes a crime of violence under ACCA; ordinary-case framework applied to § 16(b))
- James v. United States (Second/Third cites for context), 550 U.S. 192 (2007) (ordinary-case risk analysis; avoids hypothetical scenarios)