United States v. Windley, 16-1949

• Decision Date: 21 July 2017
• Docket Number: No. 16-1949,16-1949
• Citation: 864 F.3d 36
• Parties: UNITED STATES of America, Appellant, v. Travis WINDLEY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

864 F.3d 36

UNITED STATES of America, Appellant,
v.
Travis WINDLEY, Defendant, Appellee.

No. 16-1949

United States Court of Appeals, First Circuit.

July 21, 2017

864 F.3d 37

Mark T. Quinlivan, Assistant U.S. Attorney, with whom William D. Weinreb, Acting U.S. Attorney, was on brief, for appellant.

Daniel N. Marx, with whom Fick & Marx LLP was on brief, for appellee.

Before Torruella, Lynch, and Kayatta, Circuit Judges.

PER CURIAM.

After Travis Windley pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), the district court sentenced him to ninety-six months' imprisonment, over the government's objection. The sole issue raised in this ensuing appeal by the government is whether the district court erred in determining that Windley's prior convictions in Massachusetts state court for assault and battery with a dangerous weapon (ABDW) were not convictions for a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). That determination makes a difference because two of Windley's other convictions do qualify as violent felonies under ACCA¹ ; hence, even one more conviction for a violent felony would have triggered a fifteen-year mandatory minimum sentence. Id. § 924(e)(1). In light of our recent opinion in Bennett v. United States , 868 F.3d 1, 23, 2017 WL 2857620,(1st Cir. 2017),² we affirm.

Massachusetts ABDW comes in two forms: an intentional form and a reckless form. See United States v. Tavares , 843 F.3d 1, 12 (1st Cir. 2016), reh'g denied , 849 F.3d 529 (1st Cir. 2017). The parties tell us that Shepard documents relating to Windley's ABDW convictions no longer exist, so those convictions qualify as convictions for violent felonies only if both the intentional and the reckless forms of ABDW are violent felonies, see United States v. Faust , 853 F.3d 39, 51–53 (1st Cir. 2017) (citing, inter alia, Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). In the wake of the Supreme Court's ruling that ACCA's residual clause is unconstitutionally vague, Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015), we limit our inquiry to ACCA's so-called "force clause," which defines as a violent felony any crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). We have already held that intentional ABDW satisfies the identically worded force clause in the definition of a "crime of violence" in the sentencing guidelines. See Tavares , 843 F.3d at 12–13. Nevertheless, if reckless ABDW is not a violent felony, we cannot conclude that Windley was convicted of a violent felony. So framed, the pivotal question is whether Massachusetts reckless ABDW, given its mens rea requirement, has as an element the "use ...

864 F.3d 38

of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i).

Bennett held that the Maine offense of aggravated assault does not satisfy the force clause because it can be committed with a mens rea of recklessness. Bennett , 868 F.3d at 4–6, 23, 2017 WL 2857620. Under the Maine criminal code, which is based on the Model Penal Code, a person behaves recklessly when that person "consciously disregards a risk that the person's conduct will cause" a result that is an element of the crime. Me. Stat. tit. 17–A, § 35(3)(A); see Bennett , 868 F.3d at 4–6, 2017 WL 2857620. A conviction for...