758 F.3d 1 (1st Cir. 2014), 12-1791, United States v. Fish

Docket Nº:12-1791
Citation:758 F.3d 1
Opinion Judge:KAYATTA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. DAVID FISH, Defendant, Appellant
Attorney:Thomas J. O'Connor, Jr., for appellant. Alex J. Grant, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Judge Panel:Before Torruella, Dyk,[*] and Kayatta, Circuit Judges. DYK, Circuit Judge, dissenting.
Case Date:February 26, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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758 F.3d 1 (1st Cir. 2014)



DAVID FISH, Defendant, Appellant

No. 12-1791

United States Court of Appeals, First Circuit

February 26, 2014

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Thomas J. O'Connor, Jr., for appellant.

Alex J. Grant, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Torruella, Dyk,[*] and Kayatta, Circuit Judges.


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KAYATTA, Circuit Judge.

Federal law makes it a crime to possess body armor after having been convicted of a " crime of violence" as defined in 18 U.S.C. § 16 (" section 16" ). See 18 U.S.C. § 931. Appellant David Fish possessed body armor after having been convicted of several crimes, and the district court ruled that at least one of those several offenses qualified as a crime of violence under section 16. Following that ruling, Fish entered a conditional plea of guilty, reserving the right to challenge on this timely appeal the determination that he had previously been convicted of a crime of violence.

In defense of the district court's determination, the government points to four crimes under Massachusetts law for which Fish had previously been convicted: breaking and entering in the daytime, see Mass. Gen. Laws ch. 266, § § 17-18, breaking and entering at night, see id. § 16, assault and battery with a dangerous weapon, see id. ch. 265, § 15A(b), and possession of a burglarious instrument, see id. ch. 266, § 49. Notwithstanding their aptly-styled titles, we find that none of those crimes, as defined under Massachusetts law, qualifies as a crime of violence under section 16. We therefore reverse Fish's conviction.

I. Facts

The following facts are taken from the prosecution's presentation at Fish's plea colloquy. At the colloquy, Fish admitted to all facts necessary to support his guilty plea. The facts are uncontested on appeal.

On June 18, 2009, Fish, who was working as an auto mechanic at a repair shop in Pittsfield, Massachusetts, reported to the Pittsfield Police Department that someone had broken into a police vehicle that had been left at the shop for repair. After examining the vehicle, police discovered that several bulletproof vests were missing. In early July, the department learned through a cooperating witness that Fish was offering to sell six bulletproof vests. An undercover officer contacted Fish through the cooperating witness and purchased five vests, which the department afterwards identified as five of the vests that had been stolen from its vehicle. The vests, manufactured outside Massachusetts, had traveled interstate for sale in the Commonwealth.

A federal grand jury eventually returned an indictment charging Fish with a single count of possessing body armor in violation of 18 U.S.C. § 931(a), the federal body armor statute, which prohibits any person who " has been convicted of a felony that is . . . a crime of violence (as defined

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in [section 16])" from possessing body armor that has been " sold or offered for sale[] in interstate or foreign commerce." See also 18 U.S.C. § § 921(a)(35). Fish moved to dismiss the indictment, claiming that none of his prior convictions qualified as a " crime of violence" under section 16, and that the body armor statute was unconstitutional. In response, the government argued that Fish's convictions for assault and battery with a dangerous weapon and breaking and entering all qualified as crimes of violence under section 16, and that the body armor statute was constitutional.

The district court denied the motion to dismiss, finding that " [a]t a minimum, the convictions for breaking and entering satisfy the requirement[s of section 16]." The court also rejected Fish's challenge to the constitutionality of the body armor statute. Fish entered a conditional guilty plea under Rule 11(a)(2) of the Federal Rules of Criminal Procedure, preserving his right to challenge on appeal the district court's denial of his motion to dismiss the indictment. On June 7, 2012, the district court entered a final judgment, sentencing Fish to forty-eight months' probation, with ten months to be served in a community corrections facility. This appeal followed.

II. Standard of Review

Whether a prior conviction is a qualifying offense under section 16 is a question of law that we review de novo. See Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir. 2006).

III. Analysis

The difficulty posed by this and similar cases arises from the fact that there is no master list of offenses that qualify as crimes of violence. Rather, section 16 sets forth two qualitative definitions of the term " crime of violence," leaving it to the courts to measure each crime against these definitions, which read as follows:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16.

The candidates for satisfying these definitions are legion and varied. Each state defines its own crimes, generally without reference to (and often, we presume, without knowledge of) the section 16 definitions. Similar-sounding crimes may have different elements from state to state. E.g., Sykes v. United States, 131 S.Ct. 2267, 2295, 180 L.Ed.2d 60 (2011) (Kagan, J., dissenting). The elements of each crime may be defined by statute, e.g., Mass. Gen. Laws ch. 266, § 16, or by case law, E.g., Commonwealth v. Burno, 396 Mass. 622, 625, 487 N.E.2d 1366 (1986) (discussing the elements of Mass. Gen. Laws ch. 265, § 15A).

Compounding the difficulty of working with section 16's two qualitative definitions is the fact that Congress has also adopted an entirely separate, but quite similar, definition of the term " violent felony" as used in the Armed Career Criminal Act, 18 U.S.C. § 924(e) (" ACCA" ). ACCA defines " violent felony" as follows:

[T]he term " violent felony" means any crime punishable by imprisonment for a term exceeding one year . . . that

(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 Page 5

involves conduct that presents a serious potential risk of physical injury to another.

The partially overlapping, two-pronged definitions of the terms " crime of violence" and " violent felony" have given rise to multiple lines of precedent, each offering both the advantages and the limitations of cross-over application by analogy. E.g., United States v. Leahy, 473 F.3d 401, 412 (1st Cir. 2007) (noting that although we and the Supreme Court have treated the " risk of physical injury" provisions as reaching conduct beyond the scope of section 16(b), neither our decisions nor the Supreme Court's " in any way suggest[] that the reverse is true" ). Adding further insight, but perhaps further confusion as well, the United States Sentencing Guidelines define the term " crime of violence" using language that is almost, but not quite, the same as the language that ACCA uses to define the term " violent felony." See U.S.S.G. § 4B1.2 (defining " crime of violence" under the career offender guideline); compare United States v. Willings, 588 F.3d 56, 58 n.2 (1st Cir. 2009) (" [T]he terms 'crime of violence' under the career offender guideline and 'violent felony' under the ACCA are nearly identical in meaning, so that decisions construing one term inform the construction of the other." ) with United States v. Giggey, 551 F.3d 27, 36 (1st Cir. 2008) (en banc) (pointing out differences).

A third and greater complexity arises from the fact that many crimes are defined in a manner broad enough to cover both conduct that clearly meets one or both of the section 16 definitions and conduct that clearly does not. For example, in Massachusetts, the broad definition of simple assault and battery encompasses both a devastating beating and a tap on the shoulder. See generally United States v. Holloway, 630 F.3d 252 (1st Cir. 2011) (discussing the Massachusetts simple assault and battery statute).

The Supreme Court has grappled repeatedly with this third complexity, establishing and then refining a set of rules to be employed in classifying a defendant's prior offenses of conviction. These rules derive in great part from the need to honor the requirements of the Sixth Amendment's right to jury trial. Their principal purpose is to ensure that before we send a person to jail for doing " X," either the person must admit to " X" or a jury (or jury-waived court) must convict the person of doing " X" following a fair trial. See Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

The first set of rules to be applied forms what is known as the " categorical" approach. Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir. 2006). The categorical approach requires an assessment of " the elements of the statute of conviction, not . . . the facts of each defendant's conduct." Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In other words, without regard to the specific facts of each defendant's offense, we compare the elements of the crime for which the defendant was previously convicted with Congress's definition of the type of crime that may serve as a predicate offense. Under this approach, we " look[] only to the statutory definition of the state crime and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent conduct, qualifies as a crime of violence." Karimi v. Holder, ...

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