UNITED STATES оf America, Appellee, v. Mike K. JONAS, Defendant, Appellant.
No. 11-1773
United States Court of Appeals, First Circuit.
August 8, 2012
689 F.3d 83
Heard July 31, 2012.
That said, the defendants argue that “any claim that plaintiff wanted to bring against defendant Rodriguez had to be brought within a year of February 6, 2008“—the date of Cordero‘s transfer. The argument is not well fleshed-out, but we agree nonetheless. Here is why:
Whether or not Rodriguez‘s conduct prior to Cordero‘s February 2008 transfer was actionable, his conduct thereafter was not. Cordero‘s only allegations of misconduct after February 2008 are some undefined number of occasions when Rodriguez “came near [her] in an intimidating manner and stared at her fixedly” and his comment that he “would not rest” until Cordero lost her job. But Cordero says she ignored all this and that nothing else happened. These acts alone fall well short of the conduct we have found severe and pervasive in the past. See O‘Rourke, 235 F.3d at 727; Tuli v. Brigham & Women‘s Hosp., 656 F.3d 33 (1st Cir. 2011). On top of that, Rodriguez was no longer her supervisor, and she was working with new people in a new department. Literally, her environment chаnged at that point.
Nevertheless, Cordero argues that these post-transfer events were part of the same continuing violation as the arguably actionable pre-transfer events. “The continuing violation doctrine is an equitable exception that allows an employee to seek damages fоr otherwise time-barred allegations if they are deemed part of an ongoing series of discriminatory acts.” O‘Rourke, 235 F.3d at 730. But although the continuing violation doctrine can render otherwise time-barred conduct actionable, the doctrine still requires some anchoring violation within the limitations period, id., and we have just said that none of Rodriguez‘s post-transfer conduct meets that test. The continuing violation doctrine therefore does not apply here.
Cordero‘s transfer occurred more than a year before she filed suit, and none of Rodriguez‘s conduct within that one-year limitations period was actionable, so her claim against him is untimely as a matter of law. See Santana-Castro, 579 F.3d at 114. For that reason, we affirm also the district court‘s summary-judgment order dismissing Cordero‘s hostile-work-environment claim against Rodriguez.
In the end, we affirm the district court‘s grant of summary judgment dismissing Cordero‘s entire case. So ordered.
Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before THOMPSON, SELYA and DYK,* Circuit Judges.
SELYA, Circuit Judge.
Defendant-appellant Mike K. Jonas argues that, for the purpose of determining the applicability of the definition of “crime of violence” contained in the career offеnder guideline,
The relevant facts are susceptible to a succinct summаry. In the court below, the defendant pleaded guilty to two counts: possessing counterfeit securities and possessing a firearm as a felon.
At the disposition hearing, the dеfendant conceded that he had a prior drug conviction that constituted a predicate felony under the career offender guideline. He argued, however, that the second predicate felony relied upon by the government—his conviction for ABCO—was not a conviction for a crime of violеnce and, thus, could not qualify as the essential second predicate. The district court concluded that ABCO was properly classified as a crime of violence, applied
This is a rifle-shot appeal: it turns exclusively on the scоpe of the phrase “crime of violence” as that phrase is used in the federal sentencing guidelines. This question engenders de novo review. United States v. Williams, 529 F.3d 1, 3 (1st Cir. 2008).
Under the career offender guideline, a crime of violence is any offense punishable by more than one year of imprisonment that either “(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Undеr binding Supreme Court precedent, we must take a categorical approach to the question of whether a crime ranks as a crime of violence. See Sykes v. United States, — U.S. —, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011). Our focus is on the elements of the offense as delineated in the statute of conviction (as judicially glossed) and the standard charging language. See Johnson v. United States, — U.S. —, 130 S.Ct. 1265, 1269-70, 176 L.Ed.2d 1 (2010); Dancy, 640 F.3d at 468. This paradigm requires that we eschew consideration of the offender‘s particular conduct. See Sykes, 131 S.Ct. at 2272; James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007).
Under the relevant Massachusetts statute, assault and battery can be committed in various ways—some that may involve the use of violent force and some that may not. See Holloway, 630 F.3d at 254-60. Thus, the specification set out in section 4B1.2(a)(1), sometimes called the “force clause,” Hart, 674 F.3d at 41, is not categorically applicable. See Holloway, 630 F.3d at 254-60. Assuming, favorably to the defendant, that simple assault and battery and assault and battery on a correctional officer are analyzed in the same way for purposes of the force clause—and the government has not suggested the contrary—for ABCO to be regarded categorically as a crime of violence, it must fit within the “otherwise clause” of the definition set out in the career offender guideline. So viewed, the putative predicate must be an offense that “otherwise involves conduct that presents a serious potential risk оf physical injury to another.”
To qualify as a crime of violence under the otherwise clause, an offense must “(1) present a degree of risk similar to the degree of risk posed by the enumer-
With respect to the second criterion (similar in kind), offenses that involve stringent mens rea requirements are easily captured. See Sykes, 131 S.Ct. at 2275-76; United States v. Grupee, 682 F.3d 143, 149 (1st Cir. 2012) (Souter, J.). Strict liability, negligence, or recklessness crimes are more elusive. See Sykes, 131 S.Ct. at 2275-76; Begay, 553 U.S. at 144-46, 128 S.Ct. 1581.
The Supreme Court has crafted a touchstone for the similar in kind inquiry: courts must ask whether, categorically speaking, putative predicate offenses “involve[] purposeful, violent, and aggressive conduct.” Williams, 529 F.3d at 7 (citing Begay, 553 U.S. at 144-45, 128 S.Ct. 1581). This question is sometimes difficult to answer. “Adjectives like ‘purposeful’ and ‘aggressive’ denote qualities that are ineluctably manifested in degree and appear in different combinations; they are, thеrefore, imprecise aids.” Id. Mindful of this inherent imprecision, we have emphasized that an offense need only be “‘roughly similar’ in kind to the enumerated offenses.” Dancy, 640 F.3d at 468 (quoting Begay, 553 U.S. at 143, 128 S.Ct. 1581).
In the case at hand, the defendant concedes that he was charged with, and convicted of, ABCO. He argues, however, that ABCO fails both the degree of risk and similar in kind requirements. Determining whether these requirements are satisfied is a matter of federal law. See United States v. Giggey, 551 F.3d 27, 39 (1st Cir. 2008) (en banc).
We start with the similar in kind inquiry. The defendant‘s argument is straightforward. It depends on Holloway, in which we held that “because the Massachusetts simple assault and battery statute covers multiple offenses, at least one of which, reckless battery, is categorically not a violent felony, a court may only rely on an assault and battery conviction if it can ascertain that the defendant was convicted of the violent form of the offense (e.g., harmful battery).” 630 F.3d at 262.2 The defendant notes that there is nothing in the charging language that indicates how he committed ABCO. Building on this foundation, he maintains that ABCO, if committed recklessly, is no different than the simple assault and battery offense that Holloway determined did not qualify as a violent felony. See id. (discussing
Dancy is the beacon by which we must steer. The text of
As in ABPO, the additional elements of ABCO—that the victim was a correctional officer, that he was acting in an official capacity, and that the defendant knew as much—ensure that “purposeful conduct is the nоrm.” See Dancy, 640 F.3d at 468-70. This means, then, that ABCO—like ABPO—is roughly similar in kind to the offenses enumerated in connection with the “otherwise” clause of section 4B1.2(a)(2).
The defendant‘s fallback position is that ABCO presents a substantially lesser degree of risk than ABPO and, therefore, falls below the level of risk presented by the enumerated offenses. The dеfendant contends that, unlike police officers, correctional officers are usually unarmed and interact informally with prisoners. This contention rings hollow.
The proper comparison in a degree of risk analysis is between the risks typically accompanying the offense of conviction and the risks typically accompanying the offenses enumerated in connection with the “otherwise” clause of the career offender guideline. See Hart, 674 F.3d at 41. Such a comparison guides the requisite determination as to whether categori-
We have little difficulty in concluding that ABCO typically presents a serious potential risk of injury to another that is not only comparable to, but arguably greater than, the risks typically associated with the offenses enumerated in connеction with the “otherwise” clause of the career offender guideline. We previously have held that assault on a prison guard, by its nature, presents a serious risk of injury to another.3 See United States v. Gignac, 119 F.3d 67, 69 (1st Cir. 1997). ” ‘Prisons are inherently dangerous institutions,’ where prison guards are greatly outnumbered by inmates—many of whom have a history of violence or of aggressive tendencies.” United States v. Johnson, 616 F.3d 85, 94 (2d Cir. 2010) (citation omitted) (quoting Lewis v. Casey, 518 U.S. 343, 391, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)); accord Johnson v. California, 543 U.S. 499, 515, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005); Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). “Guards and inmates co-exist in direct and intimate contact. Tension between them is unremitting.” Wolff v. McDonnell, 418 U.S. 539, 562, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Moreover, a degree of risk analysis must take into account the dangers that third parties are likely to create. See Williams, 529 F.3d at 5-8. Assault and battery on a correctional officer (even an unarmed correctional officer) is like throwing a lit match into a tinder box: it inevitably “creates a risk that fellow inmates will join in the disturbance, oppose it with force, or simply use its occurrence to engage in other acts of violence.” Johnson, 616 F.3d at 94. The setting is the key: “[t]he risk of physical injury arises not only from this confrontation, but also from the fact that prisons are like powder kegs, where even the slightest disturbance can have explosive consequences.” Id.
To say more would be to paint the lily. Common sense dictates that ABCO, categorically speaking, presents a sufficiently serious potential risk of injury to another to satisfy thе degree of risk requirement. It is, moreover, sufficiently similar in kind to the offenses enumerated in connection with the “otherwise” clause of the career offender guideline. Under the categorical approach, no more is exigible.
We need go no further. For the reasons elucidated above, we hold that the claim of sentencing error is without merit.
Affirmed.
SELYA
Circuit Judge