630 F.3d 252 (1st Cir. 2011), 08-2273, United States v. Holloway

Docket Nº:08-2273, 09-1232.
Citation:630 F.3d 252
Opinion Judge:HOWARD, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Curtis HOLLOWAY, True Name: Curtis Kareem Holloway, a/k/a Curtis H. Holloway, a/k/a Curtis K. Holloway, Defendant, Appellant. United States of America, Appellee, v. Ricardo Calvo, Jr., Defendant, Appellant.
Attorney:Syrie D. Fried, Federal Defender Office, for Curtis Holloway. Alan Jay Black, for Ricardo Calvo, Jr. Mark T. Quinlivan, Assistant United States Attorney with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.
Case Date:January 21, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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630 F.3d 252 (1st Cir. 2011)

UNITED STATES of America, Appellee,

v.

Curtis HOLLOWAY, True Name: Curtis Kareem Holloway, a/k/a Curtis H. Holloway, a/k/a Curtis K. Holloway, Defendant, Appellant.

United States of America, Appellee,

v.

Ricardo Calvo, Jr., Defendant, Appellant.

Nos. 08-2273, 09-1232.

United States Court of Appeals, First Circuit.

January 21, 2011

Heard May 4, 2010.

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[Copyrighted Material Omitted]

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Syrie D. Fried, Federal Defender Office, for Curtis Holloway.

Alan Jay Black, for Ricardo Calvo, Jr.

Mark T. Quinlivan, Assistant United States Attorney with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Under the Armed Career Criminal Act (" ACCA" ), codified at 18 U.S.C. § 924(e), a person convicted of being a felon in possession of a firearm who also has three previous convictions for a " violent felony" is sentenced to a minimum of fifteen years in prison. The two appeals before us raise a recurring issue: whether a federal court may conclude that a conviction under Massachusetts's simple assault and battery statute qualifies as a violent felony under the ACCA, § 924(e)(2)(B)(i), merely because the state indictment used the boilerplate language " did assault and beat." 1

Our cases hold that Massachusetts's simple assault and battery statute covers multiple offenses; that at least one of these offenses, " harmful battery," qualifies as a violent felony under the ACCA; and that charging language in a state court indictment alleging that the defendant " did assault and beat" his victim suffices to identify the harmful battery offense.

This last conclusion-first reached by us in United States v. Mangos, 134 F.3d 460, 464 (1st Cir.1998)-has been challenged often, on the basis that the " did assault and beat" charging language is boilerplate and thus fails to identify the harmful battery offense. Despite this criticism, we have considered ourselves bound by Mangos and have reaffirmed its holding on multiple occasions. United States v. Rivera, 562 F.3d 1, 2 (1st Cir.2009); United States v. Holloway, 499 F.3d 114, 118 (1st Cir.2007); United States v. Estevez, 419 F.3d 77, 82 (1st Cir.2005); United States v. Santos, 363 F.3d 19, 23 (1st Cir.2004).

The appellants in the present cases, Curtis Holloway and Richard Calvo, urge us to revisit and abandon the Mangos rule, in light of the Supreme Court's decision in Johnson v. United States, __ U.S. __, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which held that a Florida battery offense did not qualify as a violent felony under the ACCA. Although Johnson is not directly on point we nevertheless conclude that it casts sufficient doubt on the reasoning set forth in Mangos to require us to take a fresh look at the issue. After doing so, we agree that Mangos's rule that the boilerplate charging language of assault and battery alone establishes a violent felony is no

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longer good law.2 It follows that further analysis is ordinarily required in the district courts before the conclusion can be reached as to whether the offense at issue qualifies as an ACCA felony. That further analysis would normally involve (a) looking to the documents permitted under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) and (b) consideration of whether the conduct described in those documents falls within the force clause or the residual clause of the ACCA.

The question of the appropriate next steps in these two cases is more complicated because the district courts in the instant cases relied on our previous pronouncements about the " did assault and beat" charging language when sentencing the appellants under the ACCA force clause. We vacate both sentences and remand for further consideration as noted, and for resentencing.

I. Facts

A. Holloway

In 2002, a federal grand jury in the District of Massachusetts returned a one-count indictment charging Holloway with being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g). In 2005, Holloway entered a conditional guilty plea.

1. First sentencing and appeal

At sentencing, the government argued that the district court should sentence Holloway to a mandatory fifteen-year prison term under the ACCA on the basis of his three prior Massachusetts convictions for assault and battery. The government noted that each of Holloway's convictions was accompanied by an indictment alleging that he " did assault and beat" the victim. Citing Mangos and its progeny, the government argued that this charging language sufficed to identify the offense of harmful battery, which is a violent felony under the ACCA. Holloway claimed that the " did assault and beat" charging language was not peculiar to harmful battery; rather, it was used to charge all types of assault and battery, including a type that would not qualify as a predicate offense under the ACCA. Because it was unclear which battery offense he had been convicted of, Holloway's argument continued, the district court could not sentence him as an armed career criminal. The district court accepted Holloway's argument and sentenced him to time served.

The government appealed Holloway's sentence, arguing that the sentencing decision was erroneous in light of Mangos. We agreed, noting that " Holloway's contention is foreclosed by our precedent which holds that a Massachusetts charging document that states the defendant ‘ assault[ed] and beat’ the victim is sufficient to establish the conviction was for a violent battery." United States v. Holloway, 499 F.3d 114, 118 (1st Cir.2007). We vacated Holloway's sentence and remanded for resentencing. Id. at 118-119.

2. Second sentencing and current appeal

On remand, Holloway again argued that the district court could not rely on his

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Massachusetts convictions for assault and battery to sentence him under the ACCA. The district court, as it was bound to do, rejected Holloway's argument and sentenced him to the mandatory fifteen-year prison term, to be followed by three years of supervised release. Holloway now appeals this sentence, claiming that Johnson requires reconsideration of the charging language rule.

B. Calvo

Calvo's sentencing followed a similar path. In 2006, a federal grand jury in the District of Massachusetts returned a superseding indictment charging Calvo with, among other things, being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). Calvo pled guilty to this particular count.

At sentencing, the government argued that the district court should sentence Calvo to a mandatory fifteen-year prison term under the ACCA because he had three prior Massachusetts convictions for assault and battery. As at Holloway's sentencing, the government noted that Calvo's assault and battery convictions were accompanied by the " did assault and beat" charging language that identified harmful battery as the offenses of conviction. Like Holloway, Calvo argued that the charging language was mere statutory boilerplate. The district court rejected Calvo's argument, noting that it was " foreclosed by the case law." It sentenced Calvo to the mandatory fifteen-year prison term, to be followed by five years of supervised release. Calvo appeals, advancing, in all material respects, the same argument as that advanced by Holloway.

II. Discussion

A. Legal backdrop

" We review de novo the legal conclusion as to whether a prior conviction qualifies as a ‘ violent felony.’ " United States v. Sanchez-Ramirez, 570 F.3d 75, 81 (1st Cir.2009).

Under the ACCA, a prior offense will qualify as a violent felony if it is both punishable by imprisonment for a term exceeding one year and either " (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). Clause (i) is sometimes referred to as the " force clause." See e.g., United States v. Davis, 487 F.3d 282, 285 (5th Cir.2007). The portion of clause (ii) following the enumerated offenses is known as the " residual clause." Sanchez-Ramirez, 570 F.3d at 82.

When determining whether a defendant's prior offense qualifies as a violent felony under the ACCA, the sentencing court in the first instance, and we on de novo review, take a categorical approach. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this approach, we consider whether the offense of conviction, as legally defined, qualifies as a violent felony under either of the ACCA's two clauses. Id. This approach is deemed categorical because we may consider only the offense's legal definition, forgoing any inquiry into how the defendant may have committed the offense. Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008); Taylor, 495 U.S. at 600, 110 S.Ct. 2143.

" In implementing this [categorical] approach, the first step is to identify the offense of conviction." United States v. Giggey, 589 F.3d 38, 41 (1st Cir.2009). This can prove challenging when a defendant

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is convicted under a statute that covers multiple offenses. Id. In such a case, a court may look to a restricted set of documents (e.g., indictment, plea colloquy, jury instructions) to ascertain which of the multiple offenses served as the offense of conviction. Shepard, 544 U.S. at 26, 125 S.Ct. 1254; Giggey, 589 F.3d at 41. If those documents do not identify the offense of conviction, however, the conviction may only serve as a predicate offense if each of the possible offenses of conviction would qualify as a violent felony. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Under these...

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