United States v. Dancy

• Decision Date: 13 April 2011
• Docket Number: No. 09–2628.,09–2628.
• Citation: 640 F.3d 455
• Parties: UNITED STATES, Appellee,v.Willie DANCY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

640 F.3d 455

UNITED STATES, Appellee,

v.Willie DANCY, Defendant, Appellant.

No. 09–2628.

United States Court of Appeals, First Circuit.

Heard Feb. 7, 2011.Decided April 13, 2011.

Charles W. Rankin, with whom Michelle Menken and Rankin & Sultan were on brief, for appellant.Cynthia A. Young, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.Before LYNCH, Chief Judge, SOUTER, Associate Justice,^* and STAHL, Circuit Judge.LYNCH, Chief Judge.

Willie Dancy, convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and sentenced to fifteen years (180 months) of imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), brings serious challenges to both his conviction and his sentence.

As to his conviction, Dancy argues that the firearm and related evidence should have been suppressed, that other evidence was inadmissible and prejudicial, that he was entitled to a mistrial based on the government's closing argument, and that the jury instruction on what constitutes a “firearm” was in error and violated the Second Amendment.

As to his sentence, Dancy argues the district court erred in finding him to be an armed career criminal under the ACCA, as recommended in the Presentence Report (PSR), and sentencing him to fifteen years' imprisonment, the statutory minimum under the ACCA. Based on the Supreme Court's decisions under the ACCA in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and on our recent decision in United States v. Holloway, 630 F.3d 252 (1st Cir.2011), he argues we should change prior circuit law. He argues that his prior state convictions for assault and battery on a police officer (ABPO) and for assault and battery with a dangerous weapon (ABDW) could have been based on merely reckless actions, that this is the dispositive consideration under the ACCA, and that the district court erred in finding these were valid predicate offenses rendering him an armed career criminal.

We affirm both the conviction and the sentence.

I. BACKGROUND

A. The Gun Possession Crime

We summarize the facts as found by the district court in its denial of Dancy's motion to suppress, United States v. Dancy, No. 04–10387, 2007 WL 2789279 (D.Mass. Sept. 25, 2007), which are consistent with record support and are not clearly erroneous. See United States v. Dubose, 579 F.3d 117, 120 (1st Cir.2009). We supplement that description with testimony from the record. Dancy does not argue that any of the district court's basic factual findings were clearly erroneous.

The investigating officers testified at the suppression hearing as follows. On December 8, 2004, just after 9 PM, Brockton Police Detective Mark Reardon, driving in an unmarked patrol car through a high-crime area in Brockton, Massachusetts, saw four men milling about a new Mercedes at a gas station. Suspecting the men were involved in drug sales, he began to run the car's license number while circling his car back around toward the gas station. Reardon observed a black man holding a “full-size, large-frame semiautomatic” run past Reardon's car in the opposite direction, aiming the gun toward the Mercedes. Dancy, 2007 WL 2789279, at *1. Reardon testified that when the Mercedes sped away, the man raised the gun and fired a shot into the air, then jogged away toward an alleyway.

Reardon radioed for assistance, reporting that shots had been fired. “He described the shooter as a black male with a cornrow hairstyle, dressed in a gray hooded sweatshirt with lettering and dark blue jeans. Reardon also stated that the man resembled David Taylor, an individual well known to Brockton police.” ¹ Id. Still driving in the opposite direction, Reardon lost sight of the shooter. Based on the time of night and the path the shooter took, Reardon thought the most feasible place for the shooter to go was Boomer's, “a notorious drinking establishment” with a reputation for lawlessness. Id. Boomer's was one block from the intersection where the shooting took place and was “one of the few places in the neighborhood that was open at that time of night.” Id. Reardon pulled his car around so that he could see both the street behind Boomer's ² and Main Street, in case he was wrong and the shooter had run up that street instead.

A Massachusetts State Police anti-gang unit quickly joined Reardon: Brockton Police Officers Thomas Hyland and Michael Cesarini, and State Police Sergeant Mark Kiley and Trooper Frank Walls. Reardon was in plainclothes, Kiley and Walls were in state police sweatshirts or jackets with their badges and guns visible, and Hyland and Cesarini were in uniform. Walls, followed by Hyland and Kiley, entered through the bar's rear entrance, while at the same time Reardon and Cesarini entered through the front.

Trooper Walls was familiar with David Taylor and his appearance. As soon as Walls entered the bar, he spotted a man who “strongly resembled” Reardon's radioed description. Id. at *2. This man was Dancy. In addition to the hooded gray sweatshirt and jeans, Dancy was also wearing a leather jacket. Although Walls and Hyland testified that the jacket was open in the front so that the sweatshirt was still visible, the district court found that the jacket hid the sweatshirt. See id. at *2 & n. 2.

Walls moved toward Dancy, who made eye contact with him. Dancy quickly turned, “thrust his hand into the right pocket of the jacket,” and started to move away toward the front entrance. Id. at *2. In light of Dancy's matching the description of the street shooter and that movement, Walls interpreted Dancy's movement as meaning (correctly it turned out) that Dancy had a loaded gun in his pocket. This, Walls concluded, posed a risk to the police. Walls decided that if Dancy did have a gun, the only way to keep the situation under control was to grab the gun while it was still in Dancy's pocket, and to keep Dancy or any bystander from removing it from the pocket. ³

In response to Dancy's apparent move for a gun, Walls grabbed Dancy's arm and his jacket pocket. Feeling a gun in the pocket, Walls yelled “gun” several times to alert the other officers. Dancy replied, “Get off me, bitch, I ain't got no gun,” and Dancy and Walls struggled. Id. Hyland tried to help Walls.

Dancy momentarily broke free and attempted to hand all or part of a .22 caliber revolver to a bystander, who refused to take it. Dancy then dropped the object to the floor. Cesarini sprayed Dancy in the face with pepper spray and Hyland and Walls wrestled Dancy to the ground and subdued him. Hyland or Kiley immediately retrieved the cylinder of the gun from the floor; ⁴ the cylinder contained a round of ammunition. A second cartridge was found in Dancy's jacket pocket. The pin that locked the cylinder into the gun's frame was never found.

Before Cesarini reached the fray, he saw another man push a 9–millimeter semi-automatic pistol under one of the pool tables. Cesarini ordered the man, Kevin Jones, to drop to the floor. Jones kicked the pistol farther under the table. Cesarini and Reardon subdued and arrested Jones and secured the pistol, a 9–millimeter Smith & Wesson, which was loaded with four bullets. A spent casing that a ballistics expert matched to the gun was found just outside the bar. After Jones and Dancy were arrested, Reardon confirmed that Dancy was the street shooter he had observed fire into the air.

While Dancy and Jones were held in adjacent cells at the Brockton Police headquarters, State Trooper Erik Telford overheard the two talking. Jones said to Dancy,

“Yo Will, you know the Smith & Wesson don't take no prints.” Jones continued: “Will, I'm getting charged with the big one and you're getting charged with the little one....” Dancy replied: “I know ... and you think it's my fault because I had to go do that shit[.]”

Id. at *2 (alteration and omissions in original). These statements were admitted into evidence.B. Proceedings in the District Court

Dancy was charged under 18 U.S.C. § 922(g)(1), for the gun and ammunition that were in his jacket pocket, on one count of possessing a firearm and ammunition after having previously been convicted of a felony. He was not charged with being the street shooter seen by Reardon or with possession of the 9–millimeter gun, the gun more likely used in the street shooting. Dancy moved to suppress the evidence of the .22 caliber gun and ammunition, as well as the statements he made in the Brockton Police holding cell that Trooper Telford overheard.

The district court denied the motion to suppress, finding that while Trooper Walls's seizure of Dancy was an arrest, Reardon's and Walls's collective observations and knowledge were sufficient to establish probable cause for the arrest. Id. at *3. The court found that probable cause was strongly supported by Reardon's thorough physical description of the person he personally observed firing a gun unlawfully into the air, the officers' “almost immediate apprehension” of Dancy following that shooting, Dancy's immediate attempt to evade the officers, and Dancy's “furtive” motion toward his pocket that “Trooper Walls reasonably interpreted as threatening.” Id.

The court found in the alternative that the officers had reasonable suspicion justifying an investigative stop of Dancy, and that their discovery of the gun during that stop provided probable cause for the arrest. Id. at *4. Further, the court held that “even if the initial seizure of Dancy ... was unjustified, Dancy's forcible resistance to the arrest would have been an intervening act sufficient to break the chain of causation and dissipate the taint of any illegality, thereby giving the officers fresh grounds for an arrest.” Id.

Dancy was convicted after a jury trial. The PSR listed five prior state convictions as qualifying predicate offenses under the...