United States v. Flannery
230 F. Supp. 3d 74
D.R.I.2017Background
- Defendant Thomas Flannery was sentenced to 151 months after the court treated him as a career offender based on prior Massachusetts convictions for Armed Robbery and Unarmed Robbery.
- After Johnson v. United States (residual clause invalidated) and Welch (Johnson made retroactive), Flannery filed a §2255 petition arguing his Massachusetts robbery convictions no longer qualify as predicate violent felonies under the force clause.
- The Government did not argue that Massachusetts armed and unarmed robbery are divisible statutes. The court therefore applied the categorical approach.
- Massachusetts unarmed robbery requires larceny plus either "force and violence" or "assault and putting in fear;" armed robbery adds being "armed with a dangerous weapon." Massachusetts caselaw treats the force component broadly (e.g., purse-snatching).
- The court distinguished statutes where a weapon must be used in the assault (e.g., Assault with a Dangerous Weapon) from Massachusetts armed robbery, where possession of a secreted weapon suffices.
- The court concluded Massachusetts armed and unarmed robbery are indivisible and sweep more broadly than the federal force clause, so they do not qualify as crimes of violence; it intended to vacate and resentence Flannery accordingly.
Issues
| Issue | Flannery's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether MA armed and unarmed robbery are divisible statutes (means vs. elements) | They are indivisible; force/threat are not separately elementized | Did not contest divisibility | Indivisible — jury need not unanimously specify force vs. threat, so categorical approach applies |
| Whether MA robbery statutes satisfy the federal force clause (use/attempted use/threatened use of physical force) | Do not satisfy force clause because MA law permits minimal force (e.g., purse-snatching) that is not "force capable of causing physical pain or injury" | Argued they qualify as force-based predicates (Government effectively conceded in other briefs re: identity of armed/unarmed robbery) | Do not satisfy force clause — statutes sweep more broadly than federal definition of violent force |
| Effect of the "dangerous weapon" element in armed robbery | Presence of a weapon does not ensure the statute requires use of force; weapon can be secreted and not used | Cited analogies where weapon elevates force (e.g., ADW) | Weapon element in MA armed robbery insufficient because weapon need not be used; distinguishes ADW where weapon must be used |
| Sentencing consequence (career-offender classification) | Without these predicates, Flannery lacks required prior offenses for career-offender status | Sought to retain classification based on those priors | Struck the robbery convictions as predicates; career-offender classification no longer supported; court will vacate and resentence |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (defined "violent force" requirement and invalidated ACCA residual clause earlier interpreted in part)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (struck down the residual clause)
- Welch v. United States, 136 S. Ct. 1257 (2016) (made Johnson retroactive on collateral review)
- United States v. Luna, 649 F.3d 91 (1st Cir. 2011) (previous First Circuit statement that MA armed robbery could be ACCA predicate; treated as nonbinding dicta here)
- United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015) (held ADW’s dangerous-weapon element can elevate assault to meet force clause where weapon must be used)
- United States v. Fish, 758 F.3d 1 (1st Cir. 2014) (applies categorical approach and instructs courts to consider the "most innocent conduct" criminalized)
- United States v. Castro-Vazquez, 802 F.3d 28 (1st Cir. 2015) (noted that statutes satisfied by "slightest use of force" may fail to meet Johnson’s violent-force standard)
- United States v. Tavares, 843 F.3d 1 (1st Cir. 2016) (explains that elements must be unanimously found by a jury)
- Commonwealth v. Jones, 362 Mass. 83 (Mass. 1972) (Massachusetts decision holding purse-snatching can satisfy robbery force requirement)
- Commonwealth v. Sheppard, 404 Mass. 774 (Mass. 1989) (describes force/constructive force as distinguishing robbery from larceny)
- Commonwealth v. Santos, 440 Mass. 281 (Mass. 2003) (approves general verdicts that do not specify which form of assault was used in armed robbery)