U.S. v. Santos, 02-2583.

• Decision Date: 30 March 2004
• Docket Number: No. 02-2583.,02-2583.
• Citation: 363 F.3d 19
• Parties: UNITED STATES of America, Appellee, v. Bennie SANTOS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

363 F.3d 19

UNITED STATES of America, Appellee, v. Bennie SANTOS, Defendant, Appellant.

No. 02-2583.

United States Court of Appeals, First Circuit.

Heard February 3, 2004.

Decided March 30, 2004.

Veronica J. White, for appellant.

Theodore B. Heinrich, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

STAHL, Senior Circuit Judge.

On March 15, 2000, a federal grand jury indicted Bennie Santos on three counts of possessing with intent to distribute, and distributing, crack cocaine, in violation of 21 U.S.C. § 841(a)(1). On October 29, 2001, Santos pled guilty to one count pursuant to a plea agreement under which the government agreed to dismiss the remaining counts.

At sentencing, the district court concluded that Santos was a career offender based on two prior convictions — one for assault and battery on a police officer (Mass. Gen.L. ch. 265, § 13D¹) and another for simple assault and battery (Mass.Gen.L. ch. 265, § 13A²) — that it determined were "crimes of violence" under §§ 4B1.1 and 4B1.2 of the United States Sentencing Guidelines. The sole issue on appeal is whether this determination was appropriate.

With regard to the first predicate conviction-two counts of assault and battery on a public servant-the district court had before it a police report of the incident giving rise to the conviction. The court, however, did not consider this report on the crime of violence issue. The report indicated that on December 28, 1995, three police officers

observed [Santos] traveling at a high rate of speed in the area of John Eliot Square. A motor vehicle stop was conducted at 71 Kennelworth Street. As Officers approached the motor vehicle, a strong smell of burning marijuana was coming from the motor vehicle.... Santos, Benny ... exited the motor vehicle.... While [questioning him] I observed him having difficulty speaking. I asked him to open his mouth. The suspect opened his mouth and I observed several plastic bags of a white substance I believed to be crack cocaine. When I asked the suspect to spit them out he refused, pushed me and attempted to flee. After a brief struggle and with the assistance of P.O. Thompson, we were able to place [Santos] under arrest. [Santos] was able to swallow the plastic bags in his mouth during the struggle.

In Roxbury District Court, after Santos admitted to these facts and was placed on probation, the charges were continued without a finding. On October 30, 1997, Santos was discovered in violation of his probation terms and the charges were brought forward, resulting in a conviction. He was sentenced to fifty-nine days in prison.

As for the second predicate conviction, the district looked to the charging instruments, which alleged that on June 3, 1996, Santos did "assault and beat" two victims, Robert Silva and Clayborn Blair, in violation of Mass. Gen. L. ch. 265, § 13A.³ A third charge alleged that Santos committed an assault and battery on Silva by means of a dangerous weapon, a knife, in violation of Mass. Gen. L. ch. 265, § 15A. On January 22, 1997, Santos pled guilty in Suffolk Superior Court to the two assault and battery charges, and the assault and battery with a dangerous weapon charge was filed without a change of plea. He was sentenced to three years probation as to each assault and battery count and ordered to participate in a violence prevention program. On November 7, 1997, the Superior Court, after finding him in violation of his probation, revoked probation and imposed a sentence of one year in prison.

The district court relied on United States v. Fernandez, 121 F.3d 777 (1st Cir.1997), and United States v. Mangos, 134 F.3d 460 (1st Cir.1998) in concluding that both predicate offenses were "categorically" crimes of violence for purposes of the career offender provision.⁴ The court set Santos's adjusted offense level at twenty-nine, which included a three-level reduction for acceptance of responsibility. Career offender status placed him in criminal history category VI, resulting in a guideline sentencing range of 151 to 188 months' imprisonment. The court sentenced him to 151 months' imprisonment, to be followed by thirty-six months of supervised release. This appeal followed.

DISCUSSION

Whether a prior conviction qualifies as a predicate offense under U.S.S.G. § 4B1.1 is a question of law that we review de novo. United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). We review factual conclusions by the sentencing court, which must be supported by a preponderance of the evidence, for clear error. United States v. Damon, 127 F.3d 139, 141 (1st Cir.1997). According to the sentencing guidelines, career offender status attaches if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction;

(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

USSG § 4B1.1. The only issue here is whether (3) is satisfied.

For purposes of the career offender provision, the sentencing guidelines define "crime of violence" as:

(1) [A]ny offense under federal or state law punishable by imprisonment for a term exceeding one year that —

(i) has an element the use, attempted use, or threatened use of physical force against the person of another, or

(ii) 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.

USSG § 4B1.2.

Some offenses are easily recognized as crimes of violence because they are specifically listed in the guideline, e.g., arson, or because an essential element of the offense includes the use or threatened use of force against another person, e.g., armed robbery. But an offense not listed, and which does not include among its elements the use, attempted use, or threatened use of force against another person, still might qualify under § 4B1.2 if it involves conduct that "presents a serious potential risk of physical injury to another." We generally have employed a standard "categorical approach" to determine whether an offense qualifies on this third alternative ground. Our inquiry under the categorical approach "is restricted to the statutory definition ... of the prior offense..., without regard to the particular facts underlying [it]." United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997); cf. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (adopting a similar approach when determining whether a crime is one of violence under the armed career criminal provisions of 18 U.S.C. § 924(e)(2)(B)(ii)).⁵

In United States v. Harris, 964 F.2d 1234, 1236 (1st Cir.1992), we noted that "[t]he Massachusetts `assault and battery' statute covers two separate crimes — one involving actual (or potential) physical harm and the other involving a `nonconsensual' but unharmful touching." See also Commonwealth v. Burke, 390 Mass. 480, 482-83, 457 N.E.2d 622 (1983). The Massachusetts statute for assault and battery on a public servant reflects the same. See Fernandez, 121 F.3d at 779.

"[N]otwithstanding that its statutory definition admits a non-violent means of commission," we held in Fernandez that "assault and battery upon a police officer, in violation of Mass. Gen. L. ch. 265, § 13D, is categorically a crime of violence within the meaning of the career offender provisions" of § 4B1.1. 121 F.3d at 778. We considered it

self-evident that assault and battery upon a police officer usually involves force against another, and so meets that standard. At a minimum, assault and battery upon a police officer requires purposeful and unwelcomed contact with a person the defendant knows to be a law enforcement officer actually engaged in the performance of official duties. See Commonwealth v. Moore, 36 Mass.App.Ct. 455, 632 N.E.2d 1234, 1238 (1994). While it is true that neither violence, nor the use of force, is an essential element of the crime as statutorily defined, still, violence, the use of force, and a serious risk of physical harm are all likely to accompany an assault and battery upon a police officer. See, e.g., Winter, 22 F.3d 15 at 20 ("A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to proscribe.").

Id.See also United States v. Santiago, 83 F.3d 20, 26-27 (1st Cir.1996); United States v. Pratt, 913 F.2d 982, 993 (1st Cir.1990). This ends our inquiry with regard to Santos's predicate conviction for assault and battery on a police officer. We are steadfast in our view that the crime carries a particularly high risk of physical injury and violence. The district court was not required to look any further than the statute itself.

In Mangos, we suggested the same with regard to the Massachusetts simple assault and battery statute:

While we recognize that the risks inherent in the assault and battery upon a police officer may differ from those involved in a simple assault and battery, we believe that the reasoning in Fernandez applies with similar force to this case.

134 F.3d at 464. As with Santos's predicate conviction for simple assault and battery, the charging document in Mangos stated that the defendant "did assault and beat" the victim. We found that this characterization placed the offense in the harmful battery type, thereby meeting the definition of a crime of violence under § 4B1.2. Id. Here, the district court similarly recognized that with a simple assault and battery to which the defendant...