United States v. Fish

America, UNITED STATES of

Appellee, Defendant, FISH, Appellant. David No. 12-1791. Appeals, United States Court of First Circuit. 26, Feb. §§

Mass. Gen. Laws ch. break- entering night, see id. battery assault and a dangerous 265, 15A(b), weapon, ch. pos- see id. instrument, of a burglarious session see id. 266, § ch. Notwithstanding apt- 49. their titles, ly-styled we find that none of those crimes, as defined under Massachusetts law, qualifies as a crime of violence under section 16. therefore We reverse Fish’s conviction.

I. Facts following facts are taken from the

prosecution’s presentation plea at Fish’s colloquy. colloquy, At the Fish admitted O’Connor, Jr., appellant. J. for Thomas necessary to all facts to support guilty his Grant, Alex J. Assistant United States plea. The appeal. facts uncontested on Ortiz, M. Attorney, with whom Carmen 18, 2009, Fish, On June who was work- brief, Attorney, for United States was on repair shop as an auto mechanic at a in appellee. Pittsfield, Massachusetts, reported to the TORRUELLA, DYK,* Before and Department Pittsfield Police that someone KAYATTA, Judges. Circuit police had broken into a vehicle that had shop repair. been left the for After

KAYATTA, Judge. Circuit vehicle, examining the police discovered possess bulletproof Federal law makes it a crime to that several vests were miss- body In having ing. early July, department armor after been convicted of a “crime through cooperating of violence” as defined 18 learned witness that (“section 16”). offering § 16 bulletproof U.S.C. See 18 U.S.C. Fish was to sell six § Appellant possessed David Fish vests. An undercover officer contacted body having through cooperating armor after been convicted of Fish witness and crimes, vests, several and district court ruled five which the purchased depart- that at least one of those several offenses ment afterwards identified as five of the qualified as a crime of violence under sec- vests that had been stolen from its vehicle. vests, Following ruling, tion 16. Fish en- The manufactured outside Massa- chusetts, plea guilty, reserving tered conditional had traveled interstate for sale in right challenge timely appeal on this the Commonwealth. previously the determination that he had A grand jury eventually federal re- been convicted of a crime of violence. charging an Fish with a turned indictment single possessing body In defense of the district court’s deter- count of armor mination, 931(a), government points to four violation of 18 U.S.C. the federal body prohibits any crimes under for armor Massachusetts law which felony previously person Fish had been convicted: who “has been convicted of a (as breaking daytime, and in the ... a crime of violence defined entering see * Circuit, sitting by designation. Of the Federal 16])” possessing body from ar- against courts to measure each crime these [section definitions, has been “sold or offered for which read

mor that as follows: foreign or commerce.” interstate sale[ ] (a) an offense that has as element 921(a)(35). See also 18 Fish U.S.C. use, use, attempted or threatened indictment, claiming moved to dismiss physical person use of prior qualified that none of his convictions another, property or aas “crime of violence” under section (b) any felony other offense that is a body and that the armor statute was un- that, by nature, its involves a sub- response, govern- constitutional. stantial risk that force against argued ment Fish’s convictions for person property of another battery dangerous assault and with a committing be used the course of breaking entering all weapon offense. qualified crimes of violence under sec- § 18 U.S.C. body tion that the armor statute The candidates for satisfying these defi was constitutional. legion nitions are and varied. Each state The district court denied the motion to crimes, defines its own generally without dismiss, finding minimum, that the “[a]t (and often, reference to presume, with for breaking entering convictions sat- of) knowledge out the section 16 defini isfy requirements of section 16].” tions. Similar-sounding may crimes have rejected The court also challenge Fish’s to different elements from state to state. constitutionality body of the armor — States, E.g., Sykes U.S. -, v. United statute. Fish entered a guilty conditional (2011) 2267, 2295, 180 L.Ed.2d 60 11(a)(2) plea Rule of the Federal (Kagan, J., dissenting). The elements of Procedure, Rules of Criminal preserving each crime be defined e.g., right challenge his to appeal on the district Mass. Gen. Laws ch. byor case court’s denial of his motion to dismiss the law, Burno, e.g., Commonwealth v. 7, 2012, indictment. On June the district 622, 625, Mass. 487 N.E.2d 1366 court entered a final judgment, sentencing (discussing the elements of Mass. Gen. forty-eight Fish to probation, months’ 15A). 265, § Laws ch. ten months to be community served in a Compounding difficulty of working facility. corrections appeal This followed. with section qualitative 16’stwo definitions Congress II. is the fact that Standard of has also adopted Review entirely separate, similar, but quite def- a prior Whether conviction qualify is a felony” inition of the term “violent as used ing offense under section 16 a question is Act, the Armed Career Criminal of law that we review de Agu novo. See 924(e) (“ACCA”). U.S.C. ACCA defines Gonzales, iar v. Cir. felony” “violent as follows: 2006). felony” term “violent

[T]he means Analysis III. punishable by imprisonment crime for a term exceeding year one ... that difficulty posed by this and similar (i) use, as an has element the attempted cases arises from the fact that there is no use, or threatened use of master of qualify list offenses that person another; of Rather, crimes of violence. section 16 sets qualitative (ii) forth arson, two burglary, extortion, definitions of the in- violence,” term “crime leaving explosives, volves use of or otherwise presents simple involves conduct serious Massachusetts assault and statute). battery physical injury risk of to anoth- potential er. Supreme grappled Court has re- peatedly with third complexity, this estab- overlapping, two-pronged The partially lishing refining and then a set of rules to of the terms “crime of violence” definitions employed classifying be a defendant’s felony” given have rise to and “violent prior offenses of conviction. These rules offering each multiple precedent, lines of in great part derive from the need to limitations advantages both the honor the requirements of the Sixth application by analogy. E.g., cross-over right jury Amendment’s trial. Their Leahy, States v. principal purpose is to ensure before (1st Cir.2007) (noting although we and person jail “X,” we send a for doing have the “risk Supreme Court treated person either the must admit to “X” or a physical injury” provisions reaching (or court) jury jury-waived must convict 16(b), beyond scope conduct of section person doing “X” following a fair neither our decisions nor the Shepard trial. See v. United any way “in suggest! ] Court’s 161 L.Ed.2d true”). Adding insight, reverse is further (2005). well, perhaps but further confusion as Sentencing United States Guidelines de ap The first set of rules to be using fine the term “crime of violence” plied “categor forms what is known as the almost, language quite, that is but not Gonzales, ical” approach. Aguiar v. 438 language same as the uses to ACCA (1st Cir.2006). categorical F.3d 88 felony.” define term “violent See approach requires an assessment of “the (defining 4B1.2 “crime of vio U.S.S.G. conviction, elements of the statute of guide lence” under the career offender ... of each facts defendant’s conduct.” line); compare Willings, United States v. States, 575, 601, Taylor v. 495 United U.S. (1st Cir.2009) (“[T]he 56, 58 n. 2 (1990). 110 S.Ct. 109 L.Ed.2d 607 terms ‘crime of violence’ under the career words, regard specific other without to the guideline felony’ ‘violent un offender and offense, facts of each defendant’s we com nearly are identical der the ACCA pare the elements of the crime for which meaning, construing so that decisions one previously the defendant was convicted other.”)

term inform the construction of the Congress’s type definition of the Giggey, th v. 551 United States wi a predicate crime that serve as of (1st Cir.2008) (en banc) (point approach, “look[] fense. Under this we differences). ing out statutory the state only to the definition of greater complexity A third and arises crime and the fact of conviction to deter many from the fact that crimes are defined mine whether the criminalized conduct enough including in a manner broad to cover both the most innocent conduct, clearly qualifies conduct that meets one or both of as a crime of violence.” (4th Holder, the section 16 and conduct that Karimi v. definitions (internal Cir.2013) clearly example, quotation does not. For marks omit Massa- chusetts, ted); F.3d at 89. For simple Aguiar, the broad definition of see also battery encompasses example, both a if a state defines the elements of assault beating tap burglary require the shoul- so as not to unlawful devastating on entry, encompasses generally der. See United States v. Hollo- such its statute (1st Cir.2011) (discuss- midnight way, shoplifting 630 F.3d 252 both classic bank, Third, categor- assessing of a then under the whether the ele break-in proposed pred ments of the candidate as under that law approach ical a conviction is overbroad, icate crime are we need not a conviction for so- not considered to be fanciful, hypothetical consider scenarios. burglary. Descamps v. “generic” called Duenas-Alvarez, — See Gonzales U.S. States, -, U.S. 133 S.Ct. United 183, 193, 127 S.Ct. 2276, 2281, L.Ed.2d (2007) (“[T]o find that a state statute cre (defining “generic” version of a crime generic ates a crime definition outside understood”); commonly “the offense as of a listed in a crime federal statute re Shepard, 544 quires application legal more than the 1254.1 imagination language. to a state statute’s It requires probability, a realistic not a recognizes A set of rules an second theoretical possibility, that the State would If exception categorical approach. ”); apply its statute.... see also James v. if, elements are offense’s overbroad— is, they conduct that does encompass (2007) (“We 1586, 167 L.Ed.2d 532 do not require necessary all the elements categorical approach] requir view [the predicate are render the offense —we every ing that conceivable factual offense apply authorized to sometimes “modi by a necessarily covered statute must categorical approach. fied” Under present potential injury a serious risk of approach, first determine whether the before the offense can be a violent deemed prior place took under a “divisi conviction felony.”). approaches But the two remain Descamps, ble” statute. 133 S.Ct. at stringent: they governed by the basic A is if it 2281-82. statute divisible sets principle that a state’s definition of a crime particular forth one or more elements of a if overbroad its elements allow for a (“[A offense the alternative. Id. divisi satisfying conviction without the elements out ble] statute sets one or more elements Congress provided has to define the re of the offense in the alternative —for exam quired predicate generally offense. See ple, stating burglary entry that involves (“[I]f Descamps, 133 S.Ct. at 2283-85 the automobile.”). building into a or an When sweeps broadly ge statute more than the confronted with such a we are crime, a neric conviction under that law permitted to a “consult limited class of predicate, cannot count as an ACCA even documents, jury such as indictments and if actually the defendant committed the instructions, to determine which alterna form.”); generic Taylor, offense in its tive formed the basis of the defendant’s (“If 599, U.S. at 110 S.Ct. 2143 the state Id.; prior Shepard, conviction.” also see generic statute is narrower than the view 544 U.S. at 125 S.Ct. 1254. We necessarily ... the implies conviction analyze prior then conviction not in the guilty defendant has been found of all elements, relation to all the statute’s but generic the elements of burglary. And if only instead in relation to the narrower the defendant was in burglary convicted actually subset of gave elements rise generic State where the definition has E.g., to the conviction. Descamps, adopted, been with minor variations in ter S.Ct. at minology, 2281-82. then the trial court need find overbroad, 1. In the context of statutes other than section conduct is but instead into wheth- 16, occasionally "typically” courts are tasked with defin- er it involves certain characteris- 137, ing by range Begay an offense the full of conduct it v. United tics. See (2008). proscribes, inquiring not into whether that 16; corresponds ship, § the state statute vessel or vehicle.” Id. at see (“... generic meaning substance to the of bur- § also id. at building, ship or mind, glary”). ”). With these rules we motor vehicle or ... Presumably vessel analyzing turn now to whether of the breaking because the need not involve the government four crimes to which the force, Burke, e.g., use of Commonwealth v. a crime of un- points qualifies as violence 688, 688-90, 392 Mass. 467 N.E.2d 846 der section 16. (1984), but simply instead involve door, walking through an unlocked see Daytime Nighttime Breaking A. v. Tilley, Commonwealth 355 Mass. Entering (1969), govern- N.E.2d 176 Because the district court based its ment does not argue that either of Fish’s judgment prior on Fish’s convictions for B & E qualifies convictions as a crime Daytime Felony” “B & E under an uniden 16(a), violence under section which is limit- breaking tified statute and for and enter element,” ed to having felonies “as an building nighttime “use, use, attempted or threatened use of felony, intent to commit a see Mass. Gen. physical force.” We therefore limit our begin analysis Laws ch. we our 16(b), analysis to section which applies to by considering applicability section that, nature, all felonies their ] “involve! government’s these offenses. The a substantial risk that physical argues brief on appeal though that even person property of another the records of the former conviction state may be used.” only that Fish was convicted of a “B & E Though the applicability section

Daytime,” one could conclude from them to the two Massachusetts B E & offenses Fish had been convicted under a stat ute, question impression is a of first Mass. Gen. Laws ch. this circuit, requires analysis as an element that a our does not person place law take on fully Brown, in the structure broken into have a blank slate. In United States v. put argument, Cir.2011), been fear. Before oral analyzed 631 F.3d 573 however, government submitted Rule nighttime that, B E& statute and held 28(j) letter in which it withdrew that inter even as ap- narrowed under the modified pretation of the records of conviction. proach only “night-time burgla- to include Then, argument, government at oral ry of building,” nighttime B & E did not said it had making “trouble sense of’ the qualify as a “crime of violence” under the they records of conviction as related pro- residual clause of the career offender statute, ultimately conceding that we sentencing guidelines, vision of analyze culpable should the least conduct later, year 4B1.2.2A U.S.S.G. we held E, that qualifies daytime Agu B & see Farrell, United States v. 672 F.3d Gonzales, iar v. Cir. (1st Cir.2012), Brown, in light of a 2006). Because overlaps that conduct district court had committed plain error all material B respects nighttime & holding that Massachusetts’ section E, analyze we together. the two offenses daytime B & E was a “violent daytime Both B nighttime may felony” and & E under the Armed Career Criminal 924(e). Act, by breaking be committed into a “building, 18 U.S.C. guidelines provision any presents

2. The covers offense wise involves conduct a serious arson, burglary dwelling, potential injury that "is of a risk of to another.” extortion, explosives, involves use of or other- Id. holding in Brown gov- We based our almost This conclusion likewise dooms the ernment’s final argument, we should entirely “building” on the breadth of the “ordinary any write off as not the case” element under Massachusetts law. Ac- application of the Massachusetts statutes knowledging that the term “includes not to conduct that pose does not the relevant just buildings an ar- stores and office but empirical risks. Without an foundation for ray garages of structures —detached and proposed application its of the “ordinary facilities, storage example for —that approach, government case” directs property invite theft of but would Supreme sug- our attention to the Court’s violence,” to rarely expose individuals we gestion Ashcroft, in Leocal v. found the “threat of violence” in “so broad- (2004), ly “fairly specula- a universe” to be defined generic burglary prototypical is the Then, Farrell, tive.” 631 F.3d 16(b) section offense. At argument, oral when we considered the “building” ele- government pressed analogy to alongside possibility ment of “ship” Leocal, implying that Leocal’s discussion break-ins, and “vessel” we found that the prop- had turned on the risk of violence to “applie[d] Brown rationale with even more erty. But that opinion, though it discussed force.” 35. We noted that section in great depth, did no such a “happening upon person likely is far less Rather, thing. sug- Court place to breaking entering take while gested that burglary of a building is than it vessel is while burglarizing a section 16 offense because “involves a building.” Id. at 37. burglar substantial risk that the will use victim,” against not because it rais- government concedes the correct- es concern about harm property. Famll, ness of Brown and but asks tous already Id. And since we held in Brown that, holdings ground limit those on the and Farrell breaking entering that the 16(b), unlike section neither ACCA nor the statutes at issue here are broader than guidelines provision takes account of the generic burglary present and do not against risk of the use of force property. requisite risk of the type with which Leo- point. This is a fair problem, though, is, cal was in fact concerned—that the risk is that the plainly Massachusetts offense of harm persons fail to see how —we require any does not conduct that involves supports government’s Leocal position. or substantially risks the use of force Having twice determined that the Mas- Rather, property. it reaches such statutes, breaking sachusetts and entering non-forceful as walking through acts applying they do to nonviolent entries of permission. unlocked door without See rarely-occupied structures through un- Mass, Tilley, 355 246 N.E.2d 176 windows, locked doors or do not necessari- (“In this opening Commonwealth the of a ly involve conduct that pose would a risk of closed but unlocked door or window is a physical injury force, or of the use of (internal breaking.” quotation marks omit- now hold prior that Fish’s convictions for ted)). And since we are limited to our daytime B & E nighttime B & E are government common given sense—the has categorically crimes of violence under nothing us rely else on which to must 16(b). section —we entirely view it as plausible that the of- Battery Danger- B. Assault and with a

fense frequently involves such conduct Weapon ous (which presumably why police frequent- ly property remind owners to lock doors The next gov offense to which the windows). points ernment is the Massachusetts crime er, battery a dangerous require of assault and with a “substantial physi risk” that (“ABDW”), weapon Mass. Gen. Laws ch. cal “may force be used” the course of 15A(b). 265, § The name of this offense committing an theory, offense. In it strong marks it as a candidate for classifi- might possible be to construe the refer Indeed, cation as a crime of violence. ence to the broadly “use[ of force so 1” convictions for often arise from the ABDW to encompass offenses involving strict lia dangerous intentional use of force bility, negligence, recklessness, or so long another, causing injury. E.g., serious as some adequate level of impact violent Vick, Commonwealth v. 454 Mass. 910 were involved. Just such a construction (2009) (shooting N.E.2d 339 intent to with urged was Supreme on the Court Leo causing bodily injury). murder and serious Ashcroft, cal v. reason, government, good (2004), The nev- a section 16(b) argue ertheless declines to that ABDW involving case a Florida conviction 16(a). qualifies under section As we have for driving under the influence and caus 16(a) noted, requires section that a predi- ing bodily Court, injury. however, The use, cate offense have “as element the rejected government’s argument use, attempted or physi- threatened use of “the ‘use’ of force does not incorporate cal Supreme recently force.” The Court any mens rea component.” Rather, Id. “ held, in the context of ACCA’s force reasoned, requires ‘use’ employ active clause, 924(e)(2)(B)(i), 18 U.S.C. “[wjhile ment,” because may, one in theo “the phrase ‘physical force’ means violent ry, actively employ something in an acci force,” see Johnson v. United manner, dental it is much less natural to 176 L.Ed.2d say person that a actively employs physi (2010), and we see no reason to think the cal force against another person by acci same apply would not phrase same dent.” Id. at (empha 125 S.Ct. 377 16(a). in section And may since ABDW be original). sis in Although accomplished by a “touching, mere howev- explicitly Court limited its reasoning to Hart, slight,” er see United States v. 674 negligence-or-less crimes, LeocaVs ratio Cir.2012), it does not have nale would seem apply equally “as an element the use” of force.3 crimes encompassing reckless conduct result, a As it is overbroad. wherein brought force is to bear acciden tally, rather than government being actively employed. therefore focus 16(b), es It argument its on section is therefore not surprising that our sis contains requirement concluded, no that violent ter circuits have with striking 16(b) does, employed. be Section uniformity, howev that section does not Hart, explained 3. As we enough and severe to interfere with health or comfort. Massachusetts ABDW be committed (1) (citations intentionally 674 F.3d at 43 wantonly n. or reckless- internal omitted). ly. quotation theory requires marks former inten- Both theories of unjustified require upon tional and ABDW that the use of force offense involve the another, person slight. employment dangerous weapon, however of a The lat- but the "dangerous ter calls for the weapon” intentional commission of a definition of includes wanton (something dangerous or reckless act "per more both items are se” and that, gross negligence) used, causing physical than otherwise innocuous items bodily injury "capable to another. producing bodily the case of serious harm.” ABDW, (citation reckless or wanton Id. at quotation victim's in- 42-43 internal jury omitted). trifling must be more than transient or marks 10 analyzing clause. In On the force ACCA’s residual offenses.4

reach recklessness of applicability we hold the same. to the ABDW logic, Leocal’s ACCA’s of fense, posed we first found ABDW is whether Massa question key So the injury, comparable “serious risk of convictions based allows chusetts ABDW posed by of enumer degree [ACCA’s] risk The answer is recklessness. on mere does, Clearly ated offenses.” Id. ABDW the recklessness yes, long as clearly (and thus in the applications all of its bodily E.g., harm. Com causes non-trivial case,” “ordinary v. see James United Burno, 622; 396 Mass. 487 v. monwealth 1586, 550 U.S. (1986). Indeed, Massa “[i]n N.E.2d 1366 (2007)),pose L.Ed.2d 532 such a risk- 167 chusetts, that underlies a convic conduct form, expressly even its reckless which influence and under the operating tion for transient.” requires injury that is “more than bodily injury may also be causing serious Mass, Hart, no, 627, 487 674 F.3d 43 Bur 396 charged as ABDW.” Cir.2012). (1st government 1366; does see also United States v. n. 8 N.E.2d (1st Cir.2009) (con accuracy descrip Glover, 71, of this challenge the not 558 F.3d 81 Instead, ABDW. tion of Massachusetts cluding requires that because ABDW that, fact, Massa government argues element that a defendant have effected applied to con typically chusetts ABDW touching weapon, dangerous employment of involving the active duct “ineluctably poses poten offense a serious another, simply should against force so we physical injury”). Equally tial risk of case,” “ordinary convic ignore, as not the clearly, contrary sug to the dissent’s involving tions mere recklessness. gestion that section “does differ clause in from the ACCA’s residual govern position, of this support Dissenting Op. at Hart, respects,” relevant see v. 674 ment relies on States United 20, this is not the risk that must be as Cir.2012), 33, we F.3d 41-44 16(b) analysis. sessed a section See determined that Massachusetts ABDW Leocal, 7, at 10 n. 125 377 felony” under S.Ct. qualifies as a “violent 367, 16.”); Mukasey, Ashcroft, v. v. 326 F.3d U.S.C. See Jobson Jimenez-Gonzalez Gonzales, (2d Cir.2003); (7th Cir.2008) 414 F.3d ("Today Tran v. 548 F.3d (3d Cir.2005) ("[U]se of force is 469-70 join our sister circuits and hold that reckless act.”); Bejarano-Urrutia v. an intentional crimes are not crimes of violence under Sec Gonzales, (4th Cir.2005) 413 F.3d 16(b)”); tion United States v. Torres-Villalo ("[T]he Court that 'in conclusion of the Leocal bos, (8th Cir.2007) (reck 487 F.3d ordinary natural sense can it be said no manslaughter less not a "crime of violence” person physical that a risks have to use force Gonzales, Leocal)', after v. Fernandez-Ruiz oper person another in the course (9th Cir.2006) (cited 466 F.3d 1129-30 causing ating a vehicle while intoxicated Holder, Teposte v. in Covarrubias injury' strongly indicates that the result in Cir.2011) (9th (intentionally discharging Leocal would have been the same even had a disregard firearm with reckless as to whether required at issue violation of statute there dwelling hit an inhabited is not a crime will negligence.”); recklessness rather than mere violence)); Zuniga-Soto, v. United States Chapa-Garza, 243 F.3d 921 States (10th Cir.2008) (“[Rjeck (5th Cir.2001) (felony driving while intoxicat category lessness falls into the of accidental qualify under section 16 because ed does not conduct that the Leocal Court described as necessarily it does involve intentional use satisfy failing the use of force possibility or recklessness as to the requirement under either of definitions 16’s force); United States v. intentional use of ”); Portela, Cir.2006) ("[A] United States v. Pal (6th of ‘crime of violence.’ 469 F.3d 496 Garcia, (11th 1335-36 omino requiring only does not crime recklessness Cir.2010). qualify under 18 as a 'crime of violence’ 16(b) that in (holding “plainly particular, section does to driving reckless causing encompass injury all offenses which create a found that such a fact pattern —we injury ‘substantial risk’ that will result did not “represent majority vast conduct”, person’s convictions,” from a because 44, “[t]he ABDW 674 F.3d at and 16(b) ‘substantial risk’ in relates to the could therefore not defeat the conclusion force, possible use of not to the effect of that ABDW was “typically” purposeful, vi- conduct”); person’s Aguiar, olent, 438 F.3d and aggressive. Id.

88. question We need not holding Hart’s as

Having determined that posed ABDW to similarity ABDW’s to ACCA’s listed injury qualify sufficient risk of to offenses. But holding, based as it is clause, ACCA’s proceeded, inquiry residual we on an into whether ABDW is “typ pursuant to analysis ically violent, Court’s purposeful, aggressive,” and States, Begay 137, in v. United 553 U.S. cannot establish that ABDW satisfies sec 142, 1581, 16(b). 128 S.Ct. 170 L.Ed.2d 490 tion To the extent that the “typically (2008), to inquire violent, into whether ABDW was purposeful, aggressive” and test “roughly in similar kind to the requires [offenses that an offense purpose involve in all,5 enumerated ACCA’s residual fulness at only clause].” the test looks to the Hart, 43-44; 674 F.3d at Begay, see also “usual circumstances of the crime.” See (“[T]o (“ give 128 S.Ct. 1581 ‘Adjectives F.3d at “purpose like every effect to clause and word 18 ful” “aggressive” [of and qualities denote 924(e)(2)(B)(ii)], U.S.C. we should read ineluctably degree manifested in and ” [example crimes section in appear different combinations.’ (quot 924(e)(2)(B)(ii) limiting Williams, ] crimes that United States v. (ii) (1st Cir.2008))).

clause rough covers to crimes that are 7 n. 7 16(b), by Section similar, ly degree contrast, offense, kind as well as in requires that an every posed, examples risk realistically themselves.” probable application, involve a (internal citation quotation and marks substantial risk that force will be omitted)). satisfy order to Begay’s brought test to bear in a manner such that it “rough[ similarity arson, for burglary, ]” can be said to have been “used.” See extortion, Leocal, involving and crimes 377; use 543 U.S. at 125 S.Ct. explosives Duenas-Alvarez, are listed Gonzales v. 549 U.S. —crimes 16(b) ACCA, but section offense 127 S.Ct. —an (“[To “typically purposeful, must involve violent find that a state statute is overbroad] Hart, aggressive and conduct.” requires probability, a realistic not a theo (quoting Begay, 43-14 553 U.S. at 144- retical possibility, that the ap State would 1581) (internal quotation ply its statute to conduct that falls outside omitted). marks protest Over from generic definition of a crime. To show defendant to the effect that offender, ABDW is occa that realistic probability, an and, sionally applied course, may reckless show that the statute was so conduct— violent, 9; Williams, Though phrase “purposeful, 44 n. see also United States v. 1, seem, face, aggressive” (1st Cir.2008) would (noting on its to re- 7 n. 7 violence, quire purposefulness, aggres- example "satisfy even ACCA’s crimes [the sion, violent, 'purposeful, it is now aggressive’] require- well-established that the test by any satisfied only drug be offense that “contem- ments in some measure” and that crimes, plates purposefulness, necessarily trafficking purposeful but not which "involve deliberately aggres- conduct that is violent or conduct but are sometimes violent or Hart, sive a matter aggressive,” may satisfy Begay). of course.” 674 F.3d at reasons, following For the ”); v. United test. ... see also James applied disagree. (2007) (citing Duenas- L.Ed.2d 532 matter, gov an initial the license the As noting and that approval Alvarez language draw from this ernment would hypothesize unusual always can “[o]ne explained, on dictum. As we have rests prototypically a violent cases in which even similarity to enu Begay’s test for ACCA’s present genuine not a risk of might crime intended to merated offenses was never attempted murder injury example, —for comparison a between operate rigorous as to the shoot gun, where the unbeknownst necessarily underlying prior the conduct bullets.”). er, had no in a and the conduct described conviction holding, in Finding no comfort Hart’s Sykes v. United recidivist statute. See opinion that our government points out — States, U.S. -, 131 S.Ct. that can be employed language in Hart (“The (2011) phrase ‘pur 180 L.Ed.2d 60 Begay required. what go beyond read to violent, no poseful, aggressive’ and has analysis “pur- of the Hart’s Specifically, link to the precise textual residual violent, aggressive” test con- poseful, clause.”). Rather, employing after first following references to the “ordi- tains the categorical approach to define the ele nary case”: of an offense without reference to ments may It true that an ABDW conviction is conduct, the actual facts of a defendant’s theory, and it is on a recklessness rest Begay trains its focus on whether that that insignificant reckless ABDW is, in meeting offense addition to ACCA’s seemingly in- may be committed with requirement, “roughly textual similar” to object in dangerous nocent used fash- ACCA, in the offenses listed so as to avoid reckless, ion, in of vehicular as the case to crimes application the absurd of ACCA pattern But this fact does not ABDW. dangerous, typically are not “though majority the vast of ABDW represent by normally one committed those whom convictions, ” analysis and our under the ‘armed career Begay, labels criminals.’ explicitly, clause is and neces- residual 146, 553 U.S. 128 S.Ct. 1581. Because “ordinary sarily, limited to the case.” reckless, ve our observation Hart v. 550 U.S. James represent hicular “does not ABDW majority vast of convictions” was ABDW (2007). standard, satisfy enough peimissive to this unnecessary inquire to further into was considering ‘ordinary ... case “ordinary whether the case” of ABDW in ABDW, James, of [ ]’ volves a risk of the “use” of that a we must conclude by Any required Leocal. conclusion we violent, ag composite purposeful, would, dictum, question drew as to Be gressive conduct is norm. See us here. therefore not bind See Kosereis gay, 553 U.S. S.Ct. (1st Island, v. Rhode (some omitted). Cir.2003) (“Dicta, course, binding 674 F.3d at 43-44 citations is not language, panels.”); future see also Diaz-Rodri government argues this on guez Pep Boys Corp., 410 F.3d 56 combination with Hart’s citations Cir.2005) James, newly (“[Although as license to use the constituted should be read “ordinary ignore panel ordinarily disregard case” reck- approach principles of determining previous panel, whether Mas- decision of a less ABDW preclude the section stare decisis do not us from dis- sachusetts ABDW satisfies decision.”); text, in a claiming prior dicta Pierre date the purpose, legislative his- Leval, Judging N. Under the Constitution: tory materially of a different statute. Dicta, Dicta About 81 N.Y.U. L.Rev. simply Such a result cannot be what Be- (“Among most common gay, which mentioned the “risk” inquiry disguised manifestations dictum occurs only to demonstrate that it was not the beyond the court ventures where the issue issue, inquiry at had in mind.7 controversy to declare the solution ato analysis Our section problem further that will arise —one James, governed therefore Duenas-Al- case, another or in a later phase varez, Leocal, by Begay. And in case.”). same defining “ordinary the applies case” as it is, government concedes that Hart inquiry, the “risk” explains James that sure, dispositive” “to be ... not of this sentencing courts disregard only “hy- case, and we take that concession at face pothetize[d]” factual scenarios. 550 U.S. dissent, however, value. The overshoots 208, Duenas-Alvarez, at 127 S.Ct. 1586. government, proposing that we trans- which James cites in the course of its Begay form the inquiry designed test—an explanation case,” of “ordinary likewise application to narroiv ACCA’s even when a permits only applications exclusion that crime, in all its actual applications, poses solely exist in “legal imagination.” 549 requires the risk that text ACCA’s —into 193, U.S. 127 Begay’s S.Ct. 815. Unlike 16(b)’s applica- one that section broadens “roughly test, similar” analysis de- reason, tion. simple For this we cannot in scribed James and Duenas-Alvarez accede to the suggestion dissent’s that Be- grants ignore us no license to actual cases gay’s focus on the “usual circumstances” of on ground they “typical” are not an offense now binds us to conclude that represent or do not the “majority” of con- everything outside those “usual circum- Thus, though victions. we do not read our is, terms, in “hypothe- stances” James’s opinion in James, having gone Hart as out of its size[d].” See 550 U.S. at dictum, in way, cryptic to violate James 5.Ct. 1586.6 Neither Begay James nor Duenas-Alvarez, suggests we conclude that we approach, adopt such and to it 16(b)’s would be to would be bound to follow abandon section re- those two Su- quirements preme any favor of an Court ill-fitting and cases over dictum the demanding designed less test to aecommo- government might contrary find to the here, suggests examples 6. The application dissent that "the no because the defendant gave points 'unusual' cases that James are not so far- cases which ABDW statute Dissenting Op. applied fetched.” falling See at 22. But has in fact been to conduct gave 16(b)'s examples merely James outside no "unusual” section bounds. Rather, cases. James made clear that examples provided it "hypothesizefd] Moreover, were of we are unable to reconcile the cases, unusual” see 550 U.S. at suggestion dissent's that section “does added), (emphasis provided in order to not differ from ACCA'sresidual clause in only demonstrate that "ACCA does not re- respects,” Dissenting Op. relevant quire metaphysical certainty” that a defen- Supreme suggestion with the Court's in Leo- underlying dant’s conduct would have met a meaningfully cal that the two statutes are requirements. federal recidivist statute's Id. distinct. See 543 U.S. at 10 n. Duenas-Alvarez, (citing 377; 549 U.S. at generally see Hohn United 815). 236, 252-53, Notwithstanding dissenting S.Ct. our 118 S.Ct colleague's objection examples provid- to the (Supreme L.Ed.2d Court decisions James, warning against ed rely- binding that case’s precedent” "remain until that Court them”). imagined, hypothetical on scenarios has fit to "see[s] reconsider (2013), less-demanding again reaffirmed that Hart’s of the application violent, aggres- can “typically purposeful, only way facially overbroad statute States v. generally United See test. sive” qualify predicate appli- as an ACCA is Cir.2011).8 455, 470 Dancy, categorical ap- cation of the modified Though theoretically possible it proach. concluding, acknowledge that we so Descamps having application to read no has, analogous in an one court least theory proposes, the dissent James situation, on to find license relied “ordinary approach unlikely case” to look think it Court under the Descamps imagined might case, to what be the took and decided the conviction, in the typical process case of yet again which it clarified the ornate rules a state statute’s overbreadth even ignoring govern categorical and modified applications of actual of the in the face categorical approaches, all in the service of that failed to meet the statute to conduct procedure that ends with the excision requirements textual of the federal statute applications real of broad offenses based See, e.g., Mayer, States v. at issue. they non-empirical on determinations (9th Cir.2009).9 960-63 Such present ordinary do not case. of James freewheeling interpretation a guided merely by here not the We James only not would seem to conflict Descamps, language, its thrust of but Duenas-Alvarez, but also with Descamps myriad as well. contains warn- Supreme Court’s recent decision in Des — “[wjhether U.S. -, ings to the effect that the stat- camps v. United 2276, 2285-86, of conviction has an 186 L.Ed.2d 438 ute overbroad S.Ct. government agreeing with that Hart offense did not involve at least "a substantial 8. In us, dispositive Delgado-Hernandez, the case we do is not before of force.” risk not, suggests, "apply[] Johnson, as the dissent the ordi- And in Circuit at 1129. the Second 16(b) differently nary Section it, case rule to applied precisely James as we understand Dissenting Op. than the ACCA.” at 21. To concluding prison rioting that Connecticut’s acknowledge ordinary contrary, we that the (both fact) applied theory statute and in disregard imagined, case rule allows courts to only involving requisite to conduct risk. hypothetical matching when an of- scenarios ("Every prison See 616 F.3d at 94 violation of requirements. fense to the two statutes' "risk” creates a that fellow inmates will rules risk apply But what does not to section disturbance, force, join oppose in the it with assessment, it) (particularly to broaden is the simply engage use its occurrence to Begay, "typically” under of what an offense violence.”). language other acts of If the our assessment, permits That a involves. colleague quotes from Johnson seems incon only court to look to the usual circumstances James, understanding sistent with that see committed, applies under which an offense is Op. Dissenting perhaps n. is only to ACCA. language plucked because from Degree section of Johnson entitled “Similar in Though dissenting colleague 9. our claims also Posed,” separate of Risk but instead from a Holder, support Delgado-Hernandez opinion-one section of the entitled "Similar (9th Cir.2012), and United " 'In Kind.' See F.3d at The latter 89-93. Johnson, (2d Cir.2010), States v. 616 F.3d 85 section, single which makes not a reference to 15-16, Dissenting Op. see & nn. 22-23 case,” "ordinary demonstrates little more opinion analysis neither even feints toward an us, than that like the Second Circuit under employ. Delga different we from the one In Begay inquiry permit a to stands the to court do-Hemandez, the Ninth Circuit held that Cal only to the circumstances of an look usual kidnapping a ifornia's statute was crime of supra offense. See note 8. Neither case con scouring reported violence after cases to whatsoever that the same tains indication only by "adopting] Pollyanna ensure that 16(b)’s applies to either ACCA’s or section margins at the ish outlook statute” "imagine” requirement. in which the "risk” could scenario (2) element, problem is the same: missing intentional commission of a wan- elements, ton or act causing Because of the mismatch reckless more than trifling transient or injury under that statute is nev- to another. person convicted generic er convicted of the crime.” Id. at Hart, See 674 F.3d at 43 n. 7. case, the dissent can avoid this do not We understand the dissent or the application principle only by of that government go to so far as argue, coun- suggesting we consider whether circuits, ter to the law of ten that a convic- the statute is overbroad until we have part tion under hypothetical of our overbroad, already whitewashed its actual statute would serve as a predicate offense

applications. 16(b). See, Leocal, e.g., under section 125 S.Ct. 377. if a And adopt approach To would ensnare simply defendant’s conviction were for deciding big “minority” us into how (as case), in the present ABDW with no actual unqualifying convictions for offenses indication as to whether charge was overly under broad definition we subdivision, a particular under one would permissibly ignore. option, theory, One have to might assume the conviction empirical would be to find tools for confi- (2). place have taken part Aguiar dently gauging whether actual convictions (“[Ojnly 438 F.3d at 89 the minimum crimi- minority met whatever definition of nal necessary conduct to sustain a convic- might Mayer, invent. See 560 F.3d at 952 given tion under a statute is relevant.” C.J., (Kozinski, dissenting from denial of (internal omitted)). citation ques- So the banc) (“Don’t rehearing en even think tion given arises: such a and an about how a court is supposed figure out actual specified conviction not as to wheth- whether a applied statute is a certain (1) (2), er it arose under part part would (A way ‘most of the time.’ statistical anal- possibility of a part conviction under ysis reporter? survey? of the state A Ex- (2) ignored “ordinary be as outside of the instinct?)”). pert Google? evidence? Gut Clearly, case”? the answer must be no. wipe alternative would be to out case, why If that is the then would one categorical approach directly re- True, reach a different result here? our ject Descamps. option The first is impos- hypothetical easy because the elements sible, the second foreclosed. plainly by defined statute. But be- complexity view of the unavoidable provenance cause the of a crime’s elements foregoing, we also simple consider a nothing tells one about how the crime is hypothetical. Imagine that Massachusetts committed, why we see no reason that fact defined the current elements of ABDW should be decisive. statute, solely by rather than in its case hypothetical This also serves to illus- same,

law. Keeping the elements the reading trate our of Hart. Absent would, substance, statute read as fol- Shepard-wppmved telling documents us lows: provision hypothetical of the statute conviction, given had rise to a our analysis Battery Assault and Dangerous with a of the statute replicate under ACCA would Weapon is: holding Hart’s is a violent ABDW (1) unjustified intentional felony under ACCA’s residual clause. touching of another a danger- use of Thus, whether, we would first in all ask weapon, ous circumstances, imagined, hypothetical but or, potential statute involved “serious 16(b). response have to under section And injury.” We would of physical risk dissent, (2) colleague’s learned considered makes our it did: section conclude that govern- and the agree we with both Fish requirement, and textual injury explicit contrary not dictate a ment that Hart does re- explicitly does not although section can be result. To the extent that Hart requires conduct injury, plainly quire using “ordinary case” notion of read as risk there- potential a serious that creates to erase from our consideration (unlike James 16(b)), section of. Under ACCA applications actual to reckless ABDW its Begay’s similarity apply then we would conduct, a construction of we find such never- ABDW should to see whether test actual unnecessary to be to Hart’s James that in- Because disqualified. theless be Massachusetts ABDW sur- holding “ordinary analysis, case” quiry, unlike similarity Begay’s examination under vives “typical” viola- long so is satisfied similarity requires only that test. The test purposefulness, involves tion of the statute “typically” purposeful involve a an offense Hart, would, Begay find just as we use of force.10 Johnson, States v. satisfied. Cf. (2d Cir.2010) (finding 91 n. Finally, very complexity of the test Begay’s “roughly similar” satisfied every government’s attempt prove assumption that an “over- even on the in Massachu person convicted of ABDW majority” of convictions under whelming is, se, offender, without per setts a violent them, all of “involve[d] but not any adjudication or admission necessitat behavior”). aggressive violent conclusion, give should itself us summarize analysis our of ABDW: To If Fish’s record had pause. someone with ABDW are the elements Massachusetts lawfully buy body asked whether he could (other commission satisfied when the intentional armor, no one than five trifling Justices) act than of a causes more confidently an reckless Court could have such injury; case, convictions for ABDW for question. In such a we swered merely hypotheti- are not reckless conduct statutory simply cannot combine intricate occur; actually possibilities, cal but instead interpretations judicial hunches about that reckless agree with ten Circuits underlying prior the conduct convictions employ of an intent to conduct bereft order to as a violent felon one imprison rea against another falls short of the mens jury necessarily no has whose conduct interpreted required satisfy under section that make an found to the elements Leocal; docu- Shepard-approved by in no offense a crime of violence as defined Leocal, at 11 n. Congress. ments tell us that Fish’s ABDW conviction See “ offense; therefore, (noting his that because 16 is was not such an 125 S.Ct. 377 statute”, lenity ap- rule is not a crime of violence a criminal “the ABDW conviction requirement dissenting colleague, proposing dant conceded the "risk” 10. Our satisfied, taking Begay inter- was thus it off the table com- we should "treat and James sug- pletely. changeably," points that he See 593 F.3d at 591 n. 3. And in to two cases Stinson, Dissenting Op. that al- gests at 20 the Third Circuit concluded have so held. See Dismuke, though Pennsylvania's (citing language of resist- United States v. the Stinson, (7th Cir.2010); ing suggested possibility of arrest statute the United States (3d Cir.2010)). application, nei- overbroad the statute had never But ("[W]e colleague’s applied. F.3d at supports our been so See 592 ther those cases Pennsylvania permits to have found no decision under conclusion that the James rule us resisting disregard a for applications actual of a statute to law that affirmed conviction a or "risk” re- arrest based on defendant’s inaction conduct that fails to meet ACCA's Dismuke, ”). Rather, 'going limp.' quirement. simply 'lying down’ or in the defen- — 266, § plies”); Alleyne v. United Mass. Gen. Laws ch. 49. Fish ar- cf. 2151, 2156, -, gues that government because the never (2013) (“The raised burglarious Sixth Amend- the instruments L.Ed.2d 314 convic- ..., tion until conjunction appeal, in with this we should not ment the Due consid- Clause, er the pecu- offense. While we note the requires Process that each element liarity of an placing appellate court in jury beyond of a crime be a proved doubt.”). position of finding satisfy facts to therefore hold an ele- reasonable We offense, ABDW, ment of an we need not address that because as defined Massa- law, conclude, Fish’s contention: ultimately We applica- chusetts does not in form or perhaps force, government require tion a risk of the use of did when it argue determined not to in not a issue crime of violence as defined sec- court, 16(b). district burglarious tion tools overbroad, statute is as well. Burglarious Tools C. problem government for the is that government points us last to Massachusetts courts have made clear that prior conviction under Fish’s the Massa implement a “tool or ... designed ... for prohibiting statute making, chusetts breaking room, vault, open building, safe possession, burglarious and use of instru or other depository” as described That ments. statute reads as follows: first clause of section 49 can abe master mends, key, begins long key Whoever makes or or to so as the master is not one mend, knowingly make or or for an has his automobile. Commonwealth v. Til- machine, ley, possession, engine, tool or 306 Mass. 28 N.E.2d 245 implement adapted designed (“Keys expressly par- for made to fit a cutting through, forcing breaking purpose or ticular lock for the wrongfully room, vault, open building, gaining access to a depository safe or in which depository, goods them, other kept, order to steal there were to steal order money from property, implements or other or to tools and of the kind and statute.”).11 crime, knowing commit other character described in the adapted possibility same to be for Given the designed that a defendant aforesaid, might purpose making possess- intent to use or be convicted of or employ key any attempt allow the same to be used or a master without employed it—a purpose, posing for such or whoever use crime that strikes us as knowingly relatively in his possession has master low risk of the ultimate use of key designed to fit than persons proper- more one motor vehicle, ty with intent cannot employ burglari- to use or conclude that the —we offense, same steal a motor vehicle or other ous tools even as limited therefrom, property approach, categorically shall be modified punished consti- by imprisonment in tutes a crime of violence. prison the state for not more than years by ten or a fine of IV. Conclusion not more than one dollars thousand and imprisonment jail for not more than It is no the statutes secret Con two and one half year's. gress to enact in chose its understandable Though possession 11. government provides offense of of an us no reason to con key may longer automobile master no be possession clude that the of a non-automobile clause, charged under the first see Common duplicate key charged master could not be Collardo, 1013, Mass.App.Ct. wealth v. 13 under the first clause. 1982), (Mass.App.Ct. 433 N.E.2d 487 18 many im states have stretched these conduct are cause to focus on violent

effort See, e.g., Descamps violence-connoting encompass v. United rubrics to perfect. (Kennedy, States, 2293-94 does not define as a Congress conduct that (“If wishes to J., Congress concurring) the influ- Driving crime of violence. proper in a and efficient policy pursue its accidentally causing inju- serious ence and uniformity among mandating way without pistol- with ry gets grouped together thus to their criminal respect the States teller, prosecutors and whipping bank offenses, serious and for scores of statutes two courts are left to choose between and the amendment of requiring without may deem unpalatable options: either criminal statutes as number of federal likely non-violent individuals who once.”); act at Der well, should Congress violent, may falsely fact or we assume — -, States, U.S. 131 by v. United every person convicted under over- (2011) (Scalia, L.Ed.2d 904 180 S.Ct. statute is fact a violent criminal. broad J., of certiorari and dissenting from denial prohibits the constitution us from Since provision); residual criticizing so ACCA’s course, charting the latter we will take the — States, -, v. U.S. Sykes United Congress changes former unless law 180 L.Ed.2d S.Ct. Supreme Court instructs otherwise. J., J., joined Ginsburg, dissent (Kagan, reversed, conviction is and the Fish’s ing lamenting and Court’s case is remanded for dismissal. So or- ap crafting workable difficulties dered. v. United proach); Chambers 122, 131-32, S.Ct. (2009) (Alito, J., joined by DYK, Judge, dissenting.

L.Ed.2d 484 Circuit Thomas, J., concurring judgment) in the I majority, problematic Like the find (“[Ojnly Congress can rescue federal government’s arguments here that break- from the mire into which ACCA’s courts ing entering possession and of bur- Taylor's draftsmanship ‘categorical violence glar’s tools constitute crimes of us.”). As approach’ pushed have has been § part company I under 18 U.S.C. see, elsewhere, pointed e.g., Sykes, 131 out majority with the when it holds that Mas- (Scalia, J., dissenting), S.Ct. sachusetts ABDW is not a crime of vio- great variation between the different lence. states’ criminal has flummoxed statutes Though duty the federal here courts. previously This court has held in United Congress (1st undertaken fit for Hart, seems a better 40-44 States agency, or an we have for administrative Glover, Cir.2012), and United States v. give now no choice our best to but to do Cir.2009), that 79-82 Massa- Congress’s intent. expressed effect felony” under chusetts ABDW is a “violent (ACCA), Act the Armed Career Criminals result, holding appear As our odd 924(e)(2)(B) and a “crime of 18 U.S.C. citizen, reasonably discerning partic- Sentenc- violence” under the United States ularly from afar. under stat- Convictions 4B1.2(a). Guidelines, U.S.S.G. utes connoting with names violence are in this case is whether Massachu- question sometimes crimes of deemed not to be battery with a violence, setts ABDW—assault if it most likely even such dangerous weapon similarly “crime convictions arise from violent conduct. —is 16(b).12 This of violence” under Section apparent anomaly largely arises be- 16(b) body purposes of the armor statute under of violence” for Section defines "crime

19 government not to and 2. The does not such majority, deciding rely follow Glover on documents here. Hart, that Massachusetts ABDW is holds “crime of of purposes not a violence” for Section defines a crime of violence 16(b), convic- and reverses Fish’s Section that, felony as an that “is a by offense tion. nature, its involves a substantial risk physical person prop- the Nothing in the three language the of erty of another be used in course the provisions supports such an inconsistent committing of the language offense.” This result, in my majority’s view the deci- interpreted require higher has been a directly contrary reasoning of sion is degree than present “merely of intent is Hart, reasoning decision in this court’s negligent” applications accidental of majority “dictum.” which the dismisses as Ashcroft, force. Leocal v. 543 at 12. In the ma- Majority Op. my view 1, 11, 125 U.S. S.Ct. 160 L.Ed.2d 271 jority’s decision is also inconsistent with (2004). majority inclu- holds that the Court’s decision in James v. the conduct, sion of reckless such as reckless States, 192, 208, 127 S.Ct. United driving, within ABDW ex- Massachusetts (2007). I respect- L.Ed.2d 532 167 cludes ABDW from the Sec- definition of fully dissent. 16(b). But categorical tion approach “every does not a court to require consider I. factual by conceivable offense” covered James, state statute. 550 U.S. at 127 a federal statute makes reference When When applying S.Ct. 1586. a federal stat- by to crimes defined state law in order to ute that “inherently probabilistic” contains of determine what constitutes a crime vio injury,” language “potential such as risk of law, felony lence or violent under federal under James courts consider “the a apply “categorical approach” courts encompassed by of conduct the elements whether the state law crime determine ordinary in the [statute conviction] See, e.g., meets federal definition. 207, 208, case.” Id. 127 1586 S.Ct. , —U.S.-, v. United Descamps States added). (emphasis 133 S.Ct. James, (2013); 202, 127 550 U.S. at S.Ct. II. 1586; Taylor v. This court Glover held that “the ordi- 588-89, 600-02, offense” nary crime of violence ABDW (1990). must con L.Ed.2d court Glover, Sentencing under the Guidelines. i.e., the state law crime generically,

sider applied 558 F.3d at 82. Hart Glovers elements, focus on the than with “a rather at 41-42. holding to the ACCA. facts, crime,” Descamps, of a view, my disposes Hart case this 2285, except to the extent that the stat holding driving, reckless within while charg of conviction is divisible ute scope ABDW is not similar ing and documents reveal under ordinary under case James and does which subdivision of the statute the convic from crime of prevent being ADBW categorical approach.13 tion obtained. 2285 n. violence was See id. (doubling statutory charged this defendant as well as maximum was U.S.C. intentionally defendant uses sentence if many E.g., other for criminal statutes. violence). a crime minor to commit 1227(a)(2)(E)(i) (allowing deporta- U.S.C. tion of alien who a crime of commits explicitly reck 13. Glover did address the relation); against a violence domestic driving less scenario. 558 F.3d at 82. wheth enumerated offenses must question Hart was ACCA’s precise conduct, typically purposeful and felony under the involve is a violent er ABDW we must look to the usual circum- ACCA, so which encom of the residual clause crime, allowing hypo- stances of the not “present[] that felony offenses passes patterns negate thetical fact common- physical injury to risk of potential serious considering “ordinary sense. In are similar kind to certain another” and ABDW, that case” of we must conclude arson, burglary, and listed offenses such violent, composite purposeful, of and 924(e)(2)(B)(ii); extortion. 18 U.S.C. the norm. aggressive conduct is Hart, at 41. To be similar 674 F.3d “ offenses, ‘typi James, crime must (quoting enumerated Id. at 44 550 U.S. at violent, 1586) ag (citations, alterations, and cally purposeful, involve and 127 S.Ct. ” omitted). Thus, 41 (quoting Id. at Be gressive quotation conduct.’ internal marks 137, 144-45, 553 U.S. Hart twice concluded that reckless ABDW gay v. United (2008)). ordinary is not case under James. 128 S.Ct. argued to follow Hart. In panel Hart Massa This is bound The defendant requirement addressing the residual clause of Section ABDW failed chusetts 16(b), which does not differ from the conviction could rest on reckless because a in any residual clause relevant driving. as drunk ACCA’s conduct such F.3d respects, the court need not concern itself at 43. The court nonetheless concluded it with reckless ABDW because “does not violent, composite purposeful, “a of represent majority the vast ABDW con- is the norm” under aggressive and conduct at 43. victions.” Id. at 44. Massachusetts ABDW. Id. majority suggests that Hart’s dis conclusion, reaching the Hart ordinary cussion of the case was “dictum.” rejected ground specifically court on disagree. Begay at 12. I Majority Op. today’s majority rests: specifically driving held that drunk is out may true that an It is ABDW conviction violent, scope purposeful, side the of the theory, rest on a recklessness and aggressive requirement and conduct insignificant that reckless ABDW ACCA, 144-45, at in- seemingly be committed with a 1581,14 appeals have and other courts of object dangerous nocent used in a fash- agreed that the of “vio ACCA definition ion, reckless, as in the case of vehicular felony” lent does not include reckless con But pattern ABDW. this fact does not duct, Smith, e.g., United States v. represent majority vast ABDW (7th Cir.2008); United States v. convictions, analysis and our under the Morris, (10th Cir. explicitly, residual clause is neces- Herrick, 2008); see also States v. “ordinary case.” sarily, limited to the (1st Cir.2008) (conclud 59-60 omitted) (footnotes “criminal requiring and citations that an offense

Id. James, (quoting negligence” purposeful, did meet the 1586). violent, aggressive require reiterated on conduct point This same was Begay). ment of Hart could find that very page opinion: next of the Begay [in listed crimes the conduct for which the drunk driver is stated: "The typically purposeful, influence) vio- all involve (driving ACCA] lent, convicted need aggressive By way conduct.... purposeful not be or deliberate.” 553 U.S. contrast, driving under the statutes that forbid (internal quotation 128 S.Ct. 1581 us, influence, typi- as the statute before such omitted). marks crimes, cally example [U]nlike do not....

21 person ABDW was a “violent felo the property Massachusetts or of another may be ny” only by finding ACCA that the used the course of committing the of- driving ordinary reckless was not the case require fense.” Both statutes purposeful (itself action; a case under under James the both negligent statutes exclude clause), exactly ACCA residual which is conduct. Begay, See 553 U.S. at 1581; Leocal, what Hart did. See 674 F.3d at 43-44. 543 U.S. at 125 ordinary The James case discussion S.Ct. 377.

HaH was dictum. I do not think the ACCA and Section 16(b) majority appears suggest that “materially statute[s],” different unnecessarily applied majority HaH James’s “ordi as the suggests. Majority atOp. it, nary case” standard because it should have 13. I only As see there are two differ- standard, applied Begay’s “typical! one, case provisions: ]” ences between the two the “permissive.” Majority which is more Op. ACCA enumerates certain offenses while course, 16(b) not, at 14 n. two, 8. Of is con Section does and the ACCA HaH, trary to which viewed the James and refers to a potential “serious risk of physi- Begay 16(b) being injury” standards as 674 cal same. while Section refers to a 43-44; see also United States v. “substantial physical risk that force (1st Cir.2011). Dancy, 640 F.3d against person or property of another contrary It is also to the of at views least be used.” Those differences are cer- Begay Leocal, two other circuits which treat tainly important. and See U.S. interchangeably. 377; Gonzales, James Aguiar United States v. 10 n. Dismuke, (7th Cir.2010) Cir.2006). 593 F.3d But neither (under ACCA, court must suggests ask whether difference “ordinary crime, “in ordinary or typical inquiry case” under James should be dif- case,” prongs Begay); meets both Unit ferent under the provisions, two or that Stinson, (3rd ed States v. analysis ordinary HaH’s of the case of Cir.2010) (“[W]e must determine whether ABDW as to the ACCA should not apply 16(b). ‘ordinary’ fact ‘typical’ scenario ... to Section sufficiently violent, ‘purposeful, ag III. gressive’ to a qualify as crime of violence after Begay.” (citing Begay both majority suggests also that HaH James)). Contrary majority, Be wrongly was decided applica because its gay’s “typical! ]” case is not different from broad, tion of James was too and should “ordinary James’s case.” “fanciful, have excluded hypothetical

There is also no for applying 6; basis scenarios.” Majority Op. at see also id. ordinary case rule differently to Section at 13. But inqui James did not define the 16(b) than ry the ACCA. The ACCA narrowly. defines so The Court defined “the felony” “violent as a crime that “is burgla- proper inquiry” as “whether the conduct arson, extortion, ry, involves use encompassed by elements the of explosives, fense, case, or otherwise involves conduct ordinary presents presents potential serious risk of potential injury serious risk of to another.” physical injury 208, 127 another.” S.Ct. 1586. The Court 924(e)(2)(B)(ii). Section defines a always “hypothe cautioned that one can “crime of violence” as an “offense that is a size unusual proto cases which even a that, felony nature, its typically involves a violent crime might present sure, substantial risk that genuine injury.” risk of Id. To be interpreted the cate- Other courts have not applying that courts this means narrowly majority does to residual clauses need James so gorical approach James, today. on the Ninth Cir- hypo- Relying with absurd not concern themselves examples Oregon’s burglary of “unusual” cuit law But the concluded theticals. far- gave are not so meets the residual clause. United cases that James ACCA’s (9th 948, explained: Mayer, F.3d 963 fetched. James States v. 560 Cir.2009). though Even the statute had hypothesize unusual always can One entering public to the act of applied been prototypically a vio- cases in which even change, to steal the Ninth phone booths genuine a might present crime lent found that that was not the ordi- Circuit example, attempt- an injury risk of —for (Kozinski, nary case. at 952-53 See id. gun, unbeknownst ed murder where the C.J., dissenting from the denial of rehear- Or, shooter, had no bullets. to the banc).15 ing en The Second Circuit con- spe- from the offenses example take an prison rioting cluded that Connecticut’s ACCA], one cifically [the enumerated felony a violent under the statute was imagine an extortion scheme could although in cases inmates were ACCA two anonymous blackmailer threat- where an conduct.16 convicted for non-violent in- embarrassing personal ens to release about the victim unless he is formation majority Finally, suggests that regular payments. In both mailed longer good James is no law after Des cases, physical injury the risk of to an- camps. Majority Op. at 14-15. But See zero. But that does approaches other whether courts Descamps addressed attempted not mean the offenses of docu charging consult and similar categorically murder or extortion are ments when defendant was convicted nonviolent. at under indivisible statute. 133 S.Ct. 208, And, Descamps 550 U.S. at 127 S.Ct. 1586. as 2281. did discuss James James) above, rule, ordinary parties ease and the Begay (following described crime, “typical! Descamps suggested case of a never that James looked ]”— 1581, obligated 553 U.S. at S.Ct. not to should be overruled. We are 128 “fanciful, scenarios,” Majority until it is hypothetical precedent follow Court explicitly overturned. Hohn v. United Op. Holder, actually Delgado-Hernandez 15. See victions under the statute have in- also Cir.2012) ("[W]e (9th conduct, F.3d too disposi- volved nonviolent is not may imagine parent held, a non-custodial who re recently We tive. United States v. a vaca fuses to return with her children from Thrower, “larceny person” from the is abroad, kidnap thereby effectuating a tion felony the ACCA.584 F.3d violent under ping with minimal risk of force. (2d Cir.2009). We did so notwith- However, adopt Pollyannaish we cannot standing the fact that some conduct statute; margins outlook at the aggressive neither violent nor —such ordinary case of evidence before us is that pickpocketing surely be covered —would (cita kidnapping involves a risk violence.” Similarly, in that case. statute issue omitted)). tion the fact that the sexual assault statute at Daye, issue in States v. [United Johnson, 16. United Slates v. (2d Cir.2009) been ] could have James, (2d Cir.2010) (quoting 550 U.S. applied consenting to the conduct of teen- 1586). reasoning was The court's holding agers did that a not foreclose quite Hart: similar to 'typical instance of this crime’ will indeed arguably nonviolent The fact some aggressive might involve violent and conduct. hunger conduct—such as a strike— (footnote omitted). even that con- Id. at 91 violate the some 236, 252-53, System; Viola, ment Benedetto indi (1998) (“Our vidually capacity deci and in his official binding precedent remain until sions Vice Chairman for Board of Trustees them, regardless see fit to reconsider Employees of the Maine Public Re System; subsequent whether cases have raised tirement Catherine R. Sulli van, continuing vitality.”). individually doubts about their and in her official James is still good capacity law. as member for Board of Employ

Trustees of Maine Public System; ees Retirement Richard T. IV. Metivier, individually and in his offi view, my majority’s decision is capacity cial as member for Board of inconsistent with Hart and James. I re- Employ Trustees of the Maine Public spectfully dissent.17 System; George ees Retirement A.

Burgoyne, individually and in his offi capacity cial as member for Board of Employ Trustees of the Maine Public System; ees Retirement Kenneth L. Williams, individually and in his offi capacity cial as member for Board of Employ Trustees of the Maine Public RETIREES; MAINE ASSOCIATION OF System; ees Doug Retirement Neria Sally Morrissey; Dorothy Davis; lass, individually and in her official Richard; Lynch; Catherine Paul capacity as Treasurer for Board of Employees Association; Maine State Employ Trustees of the Maine Public Backstrom; Kadi; Rona Kathleen System; ees Retirement Brian H. Ruhlin, Plaintiffs, Appellants, Robert Noyes, individually and in his official Association; Maine Education Robert capacity as Treasurer for Board of Walker; Philip Gonyar; Maine State Employ of the Trustees Maine Public Troopers Association; Poulin; Craig System, Defendants, ees Retirement Timothy Culbert, Plaintiffs, Appellees. No. 13-1933.

BOARD OF the MAINE TRUSTEES OF Appeals, United States Court of PUBLIC RETIRE EMPLOYEES First Circuit. SYSTEM; Leslie, MENT Peter M. in 27, June dividually capacity his official

as Chairman for Board of Trustees of Employees the Maine Public Retire Cir.1997), argues body 17. Fish also distinguish- armor stat- and I see no basis for Congress's power regulate ute exceeds body in- armor statute. Other circuits appears upheld body terstate commerce. As he to con- have armor statute on the cede, Cook, argument Scarborough. was all but foreclosed basis of United States v. Cir.2012) Scarborough (3d (un- Fed.Appx. v. United 644-46 (1977), Alderman, S.Ct. published); United States v. appeared (9th Cir.2009); constitutionality to assume the of a F.3d 645-48 Scott, (5th banning possession similar Fed.Appx. statute felon States v. law, Cir.2007) Scarborough good (unpublished); firearms. remains see United States v. Pat- Cardoza, ton, Cir.2006). (10th United States v. 634-36

Case Details

Case Name: United States v. Fish

Court Name: Court of Appeals for the First Circuit

Date Published: Feb 26, 2014

Citation: 758 F.3d 1

Docket Number: 12-1791

Court Abbreviation: 1st Cir.