United States v. Tavares
843 F.3d 1
| 1st Cir. | 2016Background
- Pre-dawn August 4, 2013: Boston police chased Verissimo Tavares after seeing him on a scooter and observing him discard an object; officers later recovered a loaded semiautomatic handgun from the yard where the object was thrown.
- A federal grand jury indicted Tavares for being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); he was tried, the defense presented no evidence, and the jury convicted.
- At trial the government called Richard Auclair, a Boston Police Department latent-print expert, who testified the gun bore no usable prints and (over objection) that the Unit’s compiled data showed about a 16% usable-print recovery rate from examined firearms.
- Tavares objected to admission of the 16% testimony as lacking foundation and as unfairly prejudicial; the district court admitted it and denied a motion to strike.
- At sentencing the PSR and district court applied career-offender enhancements under the Guidelines, treating two prior Massachusetts convictions—resisting arrest and assault & battery with a dangerous weapon (ABDW)—as "crimes of violence," producing a higher Guidelines range; the court imposed an 84-month term.
- On appeal Tavares challenged (1) admission of the expert statistics and (2) the characterization of his prior convictions as crimes of violence; the First Circuit affirmed conviction but remanded for resentencing consideration of the career-offender findings.
Issues
| Issue | Tavares' Argument | Government's Argument | Held |
|---|---|---|---|
| Admission of expert statistic that ~16% of guns yield usable prints | Testimony lacked reliable foundation (internal compilation, unknown procedures) and was irrelevant/prejudicial | Expert was qualified; Unit spreadsheets are regular, reliable records and the statistic helped the jury evaluate absence of prints | No abuse of discretion: testimony had adequate foundation and probative value; Rule 403 balance did not require exclusion |
| Whether Massachusetts resisting-arrest conviction is a "crime of violence" under the Guidelines (force clause) | Subsection(1) may not require the "violent force" Johnson I requires; resists-arrest has alternative formulations | Prior First Circuit precedent (Almenas/Weekes) treats subsection(1) as a crime of violence; statute is divisible so Shepard documents can resolve which subsection applied | Declined to overrule circuit precedent; remand allowed so government may submit Shepard documents to show conviction under subsection(1) |
| Whether Massachusetts ABDW is a "crime of violence" under the Guidelines (force clause) | ABDW includes a reckless variant that may not require "violent force"; if indivisible, defendant prevails | ABDW section (1) (intentional, however slight) qualifies under force clause per Whindleton/Fields; statute is divisible so court may determine which variant applied | Court holds ABDW is divisible; section (1) is a crime of violence; remand for Shepard documents to determine which variant Tavares was convicted of; court reserves deciding whether the reckless variant qualifies |
| Whether remand is required for resentencing if predicates don't qualify | N/A | Government may supply Shepard materials on remand; if predicates fail, vacate and resentence | Affirm conviction; vacate and remand for resentencing consistent with findings about predicate convictions |
Key Cases Cited
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (expert testimony gatekeeping standard)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert principles apply to all expert testimony)
- United States v. Almenas, 553 F.3d 27 (1st Cir. 2009) (Mass. resisting-arrest treated as crime of violence)
- United States v. Glover, 558 F.3d 71 (1st Cir. 2009) (Guidelines predicate-analysis precedents)
- United States v. Weekes, 611 F.3d 68 (1st Cir. 2010) (resisting-arrest under force clause)
- United States v. Fish, 758 F.3d 1 (1st Cir. 2014) (analysis of ABDW and mens rea issues)
- United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015) (ADW/ABDW section(1) qualifies under force clause)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" requires violent force)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (reckless domestic violence convictions and interpretation of "use" of force)