UNITED STATES оf America, Appellee, v. Verissimo TAVARES, Defendant, Appellant.
No. 14-2319
United States Court of Appeals, First Circuit.
December 1, 2016
Before THOMPSON, SELYA and KAYATTA, Circuit Judges.
Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
KAYATTA, Circuit Judge.
Convicted of being a felon in possession of a firearm, Verissimo Tavares appeals both the conviction and his sentence. He claims that the district court erred in admitting improper and prejudicial expert testimony concerning the absence of fingerprints on the gun that the jury found Tavares to have possessed. He also claims that the district court erred in its guideline sentencing calculations by treating his convictions for resisting arrest and assault and battery with a dangerous weapon as “crime[s] of violence.” For the following reasons, we affirm the conviction but remand for reconsideration of the sentence.
I. BACKGROUND
Before dawn on August 4, 2013, two Boston police officers responded to a dispatch about a disturbance in a Boston neighborhood. As the officers dispersed the crowd, they heard gunshots emanating from the next street; when they went to investigate the source, they caught sight of a figure, subsequently revealed to be Tavares, riding away on a motor scooter. A chase ensued.
One of the pursuing police officers testified that he saw an object in Tavares‘s hands. Another testified that he saw Tavares throw an object into the yard of a nearby dwelling at 71 Clarkson Street. The chase ended when the police took Tavares into custody. Searching for the hurled object, one of the officers discovered a silver handgun in the yard of 71 Clarkson Street. Detectives were summoned to examine the firearm. They determined that the handgun was a semiautomatic firearm, loaded with five rounds of ammunition.
A federal grand jury charged Tavares as a felon in possession of a firearm. See
In anticipation of sentencing, the probation department prepared a presentence investigation report (the PSR). The Report recommended that the district court apply a four-level career offender enhancement under the sentencing guidelines, see
II. ANALYSIS
Challenging his conviction, Tavares argues that the district court erred, to his prejudice, by admitting over his objection a portion of Auclair‘s expert testimony. Alternatively, he argues that the district court erred in calculating his guideline sentencing range by counting his prior convictions as convictions for crimes of violence. We address each argument in turn.
A. Expert Testimony
The principal issue at trial was whether Tavares had possessed the gun that the police found in the yard at 71 Clarkson Street. Mainly through cross-examination and argument, Tavares sought to show that the government had not proved his possession of the weapon beyond a reasonable doubt. To bolster this claim, he suggested (among other things) that the police officers’ testimony about his involvement with the weapon was inconsistent; that the weapon, when found, did not bear his fingerprints and, thus, had not been in his hands; and that the police had rushed to judgment. The government countered, in part, by presenting Auclair‘s testimony.
After being duly qualified as a criminalist, Auclair testified about the significance of the fact that the examination of the gun by the police laboratory revealed only a very partial print that was itself insufficient to implicate or exclude Tavares. Auclair delineated the factors that affect recovery of usable prints (including the quality of ridge skin, the texture of the surface involved, the nature of print deposition, the treatment of the surface after print deposition, and environmental conditions).1 After explаining the procedures used by the Unit to preserve prints, Auclair testified that the firearm removed from the yard at 71 Clarkson Street did not reveal any usable prints.
On appeal, Tavares challenges the court‘s rulings admitting and refusing to strike this portion of Auclair‘s testimony. Specifically, Tavares argues, first, that the testimony lacked a proper foundation; and second, that the testimony was both not relevant and unfairly prejudicial.
We review a trial court‘s decision to admit or exclude evidence for abuse of discretion. See United States v. Pires, 642 F.3d 1, 10 (1st Cir. 2011); United States v. Stierhoff, 549 F.3d 19, 27 (1st Cir. 2008). In carrying out this task, we afford “broad deference to the determination made by the district court as to the reliability and relevance of expert testimony.” Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006). Absent a material error of law, we will not uрset such a determination unless it appears that the district court “committed a meaningful error in judgment.” Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998) (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)).
Against this backdrop, we turn first to Tavares‘s argument that the challenged testimony lacked a sufficient foundation. The touchstone for the admission of expert testimony in federal court litigation is
These requirements obligate a trial court to act as a gatekeeper in order to ensure, as a condition of admissibility, that proffered expert testimony rests on a sufficiently trustworthy foundation. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). Where, as here, the factual basis of an expert‘s testimony is called into question, the district court must determine whether the testimony has “a reliable basis” in light of the knowledge and experience of the relevant discipline. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999) (quoting Daubert, 509 U.S. at 592). We, in turn, review such determinations for abuse of discretion. See id. at 142.
Expert testimony, however, can for the most part be no better than the information provided to the expert. That principle is summed up in the familiar phrase “garbage in, garbage out.” Tavares says that, whatever Auclair‘s qualifications, he lacked a sufficiently reliable basis for offering an opinion about the rate at which usable fingerprints appear on examined firearms.
This aspect of Tavares‘s challenge focuses on the alleged inadequacies of the compilation of data upon which Auclair drew in reaching his opinion about the 16% rate of usable prints recovered from examined firearms. The last step in that compilation was taken by an intern (not working under Auclair‘s supervision), and Auclair did not profess to know what procedures the intern had followed in compiling and tabulating the data.
Although Auclair was not aware of the specific procedures used to compile and tabulate the data that went into the intern‘s report, he made clear that the report was neither an ad hoc nor an informal production. Rather, the report was the latest iteration in ordinary course of a type of statistical compilation that the Unit had periodically produced on earlier occasions. These past reports were kept by the Unit in the ordinary course of its operations and were based on data that the Unit had collected and maintained in spreadsheets over a number of years. These spreadsheets had been prepared by Unit staff (including individuals with responsibility for technical information within the Unit). The district court did not abuse its discretion in finding that Auclair, given his position and expertise, was entitled to rely on these spreadsheets. See United States v. Corey, 207 F.3d 84, 89 (1st Cir. 2000) (approving expert‘s reliance on “materials maintained at ATF ‘research libraries,’ which contained information on approximately five thousand different firearms“); cf. United States v. Smith, 566 F.3d 410, 412 (4th Cir. 2009) (upholding admission of ATF agent‘s testimony that relied on “an ATF computerized database that had been compiled ‘over many, many years as agents have done this practice‘” in response to a challenge under the best evidence rule); Clausen v. M/V New Carissa, 339 F.3d 1049, 1059-61 (9th Cir. 2003) (upholding expert testimony that relied on history and reports created by others, even where there was no supported peer-reviewed literature). The intern‘s report merely updated these spreadsheets and tabulated the results, and it was within the court‘s discretion to find that Auclair could reasonably rely on that report as well.
What is more, Auclair testified that the percentage identified in the report for the Unit as a whole was “generally consistent” with his own long experience and that thе scientific publications he had consulted did not affect this assessment. This testimony provided a basis for concluding that the department‘s report was materially reliable. It also provided an independent basis for the basic point being made: it was by no means unusual to find no usable prints on a gun. On that point, it could have hardly made any difference whether the percentage of guns found to have usable prints was exactly 16% or “generally” 16%. All in all, we think that it was within the district court‘s discretion to accept Auclair‘s determination that the updated Unit statistics were reliable.
We likewise reject the defendant‘s related argument that Auclair‘s testimony lacked a proper foundation because
Tavares‘s embrace of our decision in United States v. Giambro, 544 F.3d 26 (1st Cir. 2008), does not advance his cause. There, the trial court found that the basis for the expert‘s testimony was “purely anecdotal,” and was otherwise unreliable. Id. at 33. Our affirmance of that finding as not an abuse of discretion simply does not mean that it was an abuse of discretion to admit Auclair‘s testimony that rested in its material force on several independent, non-anecdotal grounds.
To say more on this point would be to paint the lily. In the circumstances here, we think that any question about the factual underpinnings of Auclair‘s opinion goes to its weight, not to its admissibility. See Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 22 (1st Cir. 2011). So, toо, deciding whether the data were of a type that Auclair could reasonably rely upon under
The defendant‘s challenge to the relevance of Auclair‘s testimony is equally unavailing. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”
In an effort to deflect the force of this reasoning, Tavares points out that the 16% figure did not distinguish between firearms that were subjected to the so-called “fuming” process before they were sent to the lab (like the firearm in this case) and those that were not.2 This omission, Ta-
This argument is futile. There is simply no requirement that statistics must in all instances separately account for every potentially significant variable in order even to be relevant. See Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 468-69 (8th Cir. 2004). That is true of the “fuming” variable here. The defendant had the right—which he exercised—to cross-examine Auclair about the chances that the recovery percentage might differ materially in cases in which fuming was performed earlier. No more was exigible: after all, district courts have “broad latitude ... with respect to the determination of the admissibility of expert testimony,” Crowe, 506 F.3d at 18—and the limits of that broad discretion were not exceeded here.
Tavares has a fallback position. He contends that the challenged testimony, even if relevant, ought to have been excluded under
Under this generous prescription, the district court‘s admission of the challenged testimony cannot be faulted. As we have alrеady explained, the evidence was plainly relevant. Tavares, in turn, points to no prejudice that was so substantial as to compel exclusion. To be sure, Auclair‘s opinion was prejudicial in the sense that it aided the government‘s theory of the case and diminished the force of Tavares‘s theory of the case. But Rule 403 guards only against unfair prejudice, see United States v. Benedetti, 433 F.3d 111, 118 (1st Cir. 2005), and the probative value of this evidence, though modest, was not substantially outweighed by any unfairly prejudicial effect. Hence, there was no abuse of discretion in admitting that evidence.
B. Classification of Prior Offenses as “Crimes of Violence”
Under
Over Tavares‘s objection, the district court found that both of these enhancements were proper and assigned Tavares a base offense level of 24 under these provisions. The court also adopted the PSR‘s two-level enhancement because the firearm had been stolen,
As relevant hеre, at the time of Tavares‘s sentencing, the term “crime of violence” was defined as
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(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.
1. Resisting Arrest
The Massachusetts offense of Resisting Arrest is defined as
knowingly prevent[ing] or attempt[ing] to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:
(1) using or threatening to use physical force or violence against the police officer or another; or
(2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.
The parties agree that the version of this offense set forth in subsection (2) can no longer be considered to be a “crime of violence” under
Tavares does not dispute that the two versions of the Massachusetts Resisting Arrest offense set forth in subsections (1) and (2) are divisible under Descamps. Nor does Tavares disagree that remand for consideration of any Shepard documents would be appropriate if the subsection (1) version of the offense is a crime of violence. Instead, Tavares argues that the subsection (1) version of the Resisting Arrest offense itself fails to qualify categorically as a crime of violence.
In making this argument, Tavares correctly concedes that we have previously held precisely to the contrary; that is, that the subsection (1) version of the Massachusetts Resisting Arrest offense is a crime of violence under the force clause. See United States v. Weekes, 611 F.3d 68, 72-73 (1st Cir. 2010), cert. denied, 564 U.S. 1021, 131 S. Ct. 3021, 180 L. Ed. 2d 850 (2011); Almenas, 553 F.3d at 33. Tavares nevertheless points out that these prior opinions did not consider thе impact of Johnson v. United States (Johnson I), 559 U.S. 133, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010), which held that the term “physical force” under the force clause of the Armed Career Criminal Act (“ACCA“),
Tavares makes a plausible point that one might read “physical force or violence” in the Resisting Arrest statute as suggesting that “physical force” means something other than violеnce. That point, though, was as valid when Almenas was decided as it is today. Moreover, Johnson I itself construed the term “physical force” as used in the ACCA to mean “violent force.” We also see nothing in the Massachusetts case law to which Tavares points indicating that the element of “physical force or violence” is satisfied by a degree of physical force that would not equal or exceed the ACCA‘s “physical force.” In Commonwealth v. Katykhin, 59 Mass. App. Ct. 261, 794 N.E.2d 1291 (2003), the defendant refused to get into a police cruiser, stood “rigid, upright, almost like a plank of wood,” and “began to pull away [from the police officer], starting a tug of war.” Id. at 1292. In Commonwealth v. Joyce, 84 Mass. App. Ct. 574, 998 N.E.2d 1038 (2013), the defendant was “shouting and struggling to pull his arms forward to maintain a fighting stance with [a third party]” while an officer placed him under arrest. Id. at 1044. He then refused to move his feet as two officers tried to bring him to the police cruiser “pushing backwards and straining to turn so that he could shout at bystanders.” Id. at 1041, 1044. In Commonwealth v. Maylott, 65 Mass. App. Ct. 466, 841 N.E.2d 717 (2006), the defendant was “moving his arms, flailing as he was yelling and screaming” when the officers tried to handcuff him. Id. at 718. When one officer took hold of his right hand, he stiffened his arm and refused to turn around or put his hands behind his bаck. Id.
It certainly seems reasonable to view the foregoing conduct as involving in each instance a use or threatened use of force sufficient to cause pain or injury so as to qualify under the force clause as construed in Johnson I. Whether we would so conclude in the absence of binding precedent, we need not decide. Rather, we need only decide—and do decide—that this appeal does not present one of those rare occasions in which we might set aside controlling circuit precedent.
2. ABDW
Chapter 265, § 15A(b) of Massachusetts General Laws sets forth the maximum term of incarceration and fine that may be imposed on a person “[w]ho[] commits an assault and battery upon another by means of a dangerous weapon.”
[(1)] “the intentional and unjustified use of force upon the person of another, however slight,” or
[(2)] “the intentional commission of a wanton or reckless act ... causing physical or bodily injury to another.”
Id. at 1368-69 (citations omitted). For ease of reference given the numerous sections and subsections described in the opinion, we refer to these two forms of the offense as Massachusetts ABDW sections (1) and (2).
Tavares makes two principal arguments in challenging the district court‘s classification of this offense as a “crime of violence” under
In Fish, we did indeed observe that the government, “with good reason,” declined to argue that Massachusetts ABDW section (1) qualifies as a crime of violence under the force clause of
Nevertheless, in United States v. Whindleton, 797 F.3d 105 (1st Cir. 2015), cert. dismissed, — U.S. —, 137 S. Ct. 23, 195 L. Ed. 2d 896 (2016), and cert. denied, — U.S. —, 137 S. Ct. 179, 196 L. Ed. 2d 147 (2016), the government advanced the argument it eschewed in Fish, and we turned our focus from the ACCA‘s “use ... of physical force” to its “attempted ... or threatened use of physical force” criterion, finding that a mere touching with a dangerous weapon constituted an attempted or threatened use of physical force. Id. at 113-16; see also United States v. Hudson, 823 F.3d 11, 16 (1st Cir. 2016) (reaffirming Whindleton). We have extended the holding in Whindleton from the force clause of the ACCA to the force clause of
That holding leaves two questions: Is Massachusetts ABDW section (2)—“the intentional commission of a wanton or reckless act ... causing physical or bodily injury to another” —also a crime of violence? If not, is Massachusetts’ definition of ABDW divisible? We address the divisibility question first. Ultimately, we conclude that the statute is divisible and rеmand the case to the district court to determine whether Tavares was convicted under Massachusetts ABDW section (1) without deciding whether Massachusetts ABDW section (2) is also a crime of violence.
In Fish, this court posited that if Massachusetts had set forth the elements of each
Assault and Battery with a Dangerous Weapon is:
(1) The intentional and unjustified touching of another by use of a dangerous weapon,
or,
(2) The intentional commission of a wanton or reckless act [with a dangerous weapon] causing more than transient or trifling injury to another.
Fish, 758 F.3d at 15. This offense reads as a divisible statute, one which “list[s] elements in the alternative, and thereby define[s] multiple crimes.” Mathis, 136 S. Ct. at 2249. One set of elements requires a heightened mens rea—intentional conduct—but only slight contact. Burno, 487 N.E.2d at 1368-69. The other set requires merely reckless behavior but an injury that “interfered with the health or comfort of the victim.” Id. at 1370. Which set of elements a jury would have to find in order to convict would depend upon which form of ABDW the government advanced at trial.
Tavares, however, points us to decisions from the state‘s intermediate appellate court—the Appeals Court of Massachusetts—which hold that jurors need not be unanimous as to the form of assault and battery of which it convicts a defendant. See Commonwealth v. Mistretta, 84 Mass. App. Ct. 906, 995 N.E.2d 814, 815-16 (per curiam), rev. denied, 466 Mass. 1108, 996 N.E.2d 881 (2013); see also Commonwealth v. Frith, No. 15-P-0364, 2016 WL 3659906, at *2 (Mass. App. Ct. July 8, 2016) (unpublished opinion). In Mistretta, the court found that the two forms of assault and battery “are closely related subcategories of the same crime,” and thus “[s]pecific unanimity is not required, because they are not ‘separate, distinct, and essentially unrelated ways in which the same crime can be committed.‘” 995 N.E.2d at 815-16 (quoting Commonwealth v. Santos, 440 Mass. 281, 797 N.E.2d 1191, 1197 (2003), overruled on other grounds by Commonwealth v. Anderson, 461 Mass. 616, 963 N.E.2d 704, 718 (2012)). Based on Mistretta, the 2016 version of the Criminal Model Jury Instructions for Assault and Battery, while laying out the elements for both “Intentional Assault and Battery” and “Reckless Assault and Battery,” instruct that “[n]o verdict slip or specific unanimity instruction [is] required where both intentional and reckless assault and battery are alleged.” Massachusetts Criminal Model Jury Instructions for Use in the District Court, Instruction 6.140, at 6 n.1 (June 2016), available at http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructions-criminal/6000-9999/6140-assault-and-battery.pdf.8
We are not bound by a decision of a state intermediate appellate court, though such a decision “generally constitutes a reliable piece of evidence” concerning a state-law question. Noviello v. City of Boston, 398 F.3d 76, 91 (1st Cir. 2005). Where, as here, the state‘s highest court—the SJC—“has not spoken directly to an issue, [we] must make an informed prophecy as to the state court‘s likely stance.” Andrew Robinson Int‘l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).
State law as to what facts a jury must agree upon unanimously plays a crucial role in distinguishing between elements and mere factual means.9 See Mathis, 136 S. Ct. at 2250 (“[The locations listed in the Iowa burglary statute] lay out alternative ways of satisfying a single locational element, as the Iowa Supreme Court has held: Each of the terms serves as an ‘alternative method of committing [the] single crime’ of burglary, so that a jury nеed not agree on which of the locations was actually involved.” (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981))). Thus, if Mistretta accurately reflects Massachusetts state law, it means that Massachusetts ABDW is indivisible.
We must therefore predict how the SJC would decide whether a specific unanimity instruction is required in an ABDW prosecution, using Mistretta as a reliable piece of evidence. Mistretta applied the standard set forth by the SJC in Santos for determining when jury unanimity is required. In Santos, the defendant claimed that the trial judge had erred by refusing to give a specific unanimity instruction with respect to the indictment charging armed robbery. 797 N.E.2d at 1194. He argued that whether he had used force on the victim or had merely placed the victim in fear constituted different “theories” of the assault element of armed robbery, thus requiring specific unanimity. Id. at 1196. The SJC disagreed and held that a specific unanimity instruction was not required. Id. at 1198.
Santos reached this holding on the basis of three intermediate conclusions. First, a specific unanimity instruction is only required when there is more than one “theo-
Dictum in the Santos opinion clarifies that, in determining whether two forms of an offense are “substantively distinct or dissimilar” theories or “closely related” methods of proving the same elements, courts should consider the mens rea requirements of the two forms of the offense. The SJC offered manslaughter as an example of a crime that may be proved by two different theories that are “substantively distinct or dissimilar“—namely, voluntary manslaughter and involuntary manslaughter. Id. at 1197. Under Massachusetts law, “voluntary manslaughter is an intentional killing, which is mitigated by extenuating circumstances,” Commonwealth v. Squailia, 429 Mass. 101, 706 N.E.2d 636, 642 (1999) (emphasis omitted), while “[i]nvoluntary manslaughter is an unintentional, unlawful killing caused by wanton or reckless conduct,” Commonwealth v. Earle, 458 Mass. 341, 937 N.E.2d 42, 48 (2010). The Santos opinion concluded that voluntаry and involuntary manslaughter were not closely related because of their different mens rea requirements. 797 N.E.2d at 1197 (“[V]oluntary and involuntary manslaughter are mutually exclusive—one cannot kill both intentionally and unintentionally at the same time.“). This conclusion could apply equally to Massachusetts ABDW section (1) and Massachusetts ABDW section (2), which, like the two forms of manslaughter, differ in that one requires intent while the other requires recklessness. Thus, this dictum from Santos indicates that Mistretta was wrongly decided.
Mistretta, however, also drew support from a later SJC opinion, Porro, 939 N.E.2d 1157, which complicates the analysis. Porro addressed the relationship between two different types of assault: attempted battery assault and threatened battery assault. The court held that “[a]n assault under a theory of attempted battery ... has elements different from an assault under a theory of threatened battery.” Id. at 1163. The elements of attempted battery assault are that “the defendant ‘intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.‘” Id. (citation omitted). The elements of threatened battery assault are “that the dеfendant engaged in conduct that a reasonable person would recognize to be threatening, that the defendant intended to place the victim in fear of an imminent battery, and that the victim perceived the threat.” Id.
Although these two forms of assault have different elements, Porro contains a statement (itself also dictum) that a specific unanimity instruction is not required in prosecutions for assault. Id. at 1165-66. This statement, if adopted, would extend Santos‘s holding as to the assault element of robbery to the substantive crime of assault:
Because attempted battery and threatened battery “are closely related,” we do not require that a jury be unanimous as to which theory of assault forms the basis for their verdict; a jury may find a defendant guilty of assault if some jurors find the defendant committed an
attempted battery (because they are convinced the defendant intended to strike the victim and missed) and the remainder find that he committed a threatened battery (because they are convinced that the defendant intended to frighten the victim by threatening an assault).
Porro, 939 N.E.2d at 1165 (quoting Santos, 797 N.E.2d at 1197); see also Commonwealth v. Arias, 78 Mass. App. Ct. 429, 939 N.E.2d 1169, 1173-74, 1173 n.2 (2010).
Porro‘s dictum is in tеnsion with United States Supreme Court precedent. Under a literal reading, Porro states that the two forms of assault have different elements and that a jury may convict a defendant of assault without agreeing unanimously about which elements of the crime were satisfied. Such a holding would contradict the definition of “element” as it is used by the Supreme Court. See, e.g., Mathis, 136 S. Ct. at 2250. While we could reject the SJC‘s conclusion about the specific unanimity requirement for assault as dictum, we note that it has been incorporated into the model jury instructions for assault. See Massachusetts Criminal Model Jury Instructions for Use in the District Court, Instruction 6.120, at 4 n.9 (2009 ed.), available at http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructions-criminal/6000-9999/6120-assault.pdf. Thus, we conclude that the Porro opinion uses the word “element” differently than the Supreme Court. Under the Supreme Court‘s usage, Porro‘s dictum that a specific unanimity instruction is not required in prosecutions for assault implies that the two forms of assault are alternative means of proving the same elements.10
Porro is also in tension with the dictum from Santos from which we concluded that Mistretta was wrongly decided. Like the example of voluntary and involuntary manslaughter, the two forms of assault considered in Porro have different mens rea requirements. Attempted battery requires an intent to commit a battery, while threatened battery requires an intent to place the victim in fear of an imminent battery. Porro, 939 N.E.2d at 1163. These two mens rea requirements are more closely related than intent and recklessness, however. While “one cannot kill both intentionally and unintentionally at the same time,” Santos, 797 N.E.2d at 1197, one could easily intend both to commit a battery and to place a victim in fear of an imminent battery. Therefore, Porro does not alter the conclusion we reached above. We predict that the SJC would not follow Mistretta.
This conclusion is compatible with the language the United States Supreme Court has used to distinguish elements from mere facts. Whether one commits ABDW with an intentional or reckless mens rea carries with it an important legal consequence: it changes the required result of the battery needed for a conviction. If the actor intentionally uses force upon another, no injury must be proven, but if the actor intends only to commit conduct that is reckless, physical or bodily injury must be proven. Burno, 487 N.E.2d at 1368-69. The differences in the two forms of Massachusetts ABDW—intentional versus reckless mens rea, slight touching versus bodily injury—are substantively distinct and therefore constitute alternative elements, rather than different factual means of establishing a single set of ele-
Of course, given our finding that Massachusetts ABDW section (1) is a crime of violence, our conclusion that ABDW is divisible only makes a difference if Massachusetts ABDW section (2)—the reckless version of ABDW—is not a crime of violence. Prior to the Supreme Court‘s recent decision in Voisine v. United States, — U.S. —, 136 S. Ct. 2272, 195 L. Ed. 2d 736 (2016), precedent directly dictated that the reckless, unintentional causing of injury, such as unintentionally hitting a pedestrian while driving recklessly, was not a crime of violence under
In Voisine, the Supreme Court held that
That this contention is correct, however, is not entirely clear. As Tavares points out, Voisine itself specifically left open the question whether reckless conduct is encompassed in the similar statutory language found in
Even a careful reader of this opinion may at this point feel lost. We began with a seemingly simple question. Has Tavares been convicted of a crime of violence? Trying to answer that question then led us down several rabbit holes: Is Massachusetts ABDW a divisible offense under Descamps and Mathis? How does Massachusetts law define the relationship between the two common forms of the offense? Does Voisine upend the circuits’ wide consensus that recklessly causing injury is different than using force against a person?
In a sensible world, Congress and/or the Sentencing Commission would have made a list of state and federal laws deemed to be crimes of violence that warranted the desired penalties and sentencing enhancements. At its margins, such a list might be over- or under-broad. It would, though, be straightforward.
Instead of using a simple list, the drafters adopted abstract desсriptions of the crimes that would appear on such a list, employing terms such as “physical force,” “use,” “injury,” and so on. The result is a Rube Goldberg jurisprudence of abstractions piled on top of one another in a manner that renders doubtful anyone‘s confidence in predicting what will pop out at the end. Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 483-84 (9th Cir. 2015) (en banc) (Owens, J., concurring).
What pops out matters a great deal. In Fish, one could not know whether certain conduct was lawful or criminal unless one knew whether a prior crime was a crime of violence. Here, Tavares could not know—within years—the guidance applicable to his sentencing. Nor could one get confident answers by asking a lawyer—or even a judge. So what do we do here? For three reasons, we stop short of finally deciding now whether a conviction under the reckless version of ABDW qualifies as a crime of violence.
First, the Supreme Court has granted certiorari in Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015), cert. granted, — U.S. —, 136 S. Ct. 2510, 195 L. Ed. 2d 838 (2016). Although the Eleventh Circuit decided that case on the narrow ground that Johnson II did not apply to a career offender enhancement based on the Guidelines commentary to
Second, even if Beckles does not put the residual clause back in play in this case, it
Third, in the event that it does make a difference, the parties will be able to brief the issue and the district court—for the first time—will be able to consider it. We, in turn, will then have the benefit of a fully developed record, the district court‘s views, and likely more precedent to consider as we and other courts encounter the “recklessness” question in other cases in which the answer does make a difference. We therefore remand to the district court to allow the government the opportunity to put forth Shepard documents that clarify whether Tavares‘s ABDW conviction was for the intentional or reckless version of the offense.
Otherwise, it should vacate and then re-enter the present sentence.
CONCLUSION
We affirm Tavares‘s conviction, but remand for reconsideration of his sentence consistent with this opinion. If the district court concludes that either the Resisting Arrest conviction or the ABDW conviction did not qualify under the career offender guideline, it should vacate and resentence.