United States Court of Appeals For the First Circuit

Case Number: 15-1874

Judge: Juan R. Torruella

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney:

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney

Defendant's Attorney:

Elizabeth Prevett, Federal Public Defender

Description: A person with three convictions for violent felonies or
serious drug offenses who commits a federal firearms crime is an
armed career criminal and must be sentenced to at least 15 years
in prison — so says the Armed Career Criminal Act ("ACCA," for
short). See 18 U.S.C. § 924(e). Under the governing rule, the
government must prove the existence of the prior convictions by a
preponderance of the evidence. See United States v. Mulkern, 854
F.3d 87, 90 (1st Cir. 2017); see also United States v. Dancy, 640
F.3d 455, 467 (1st Cir. 2011). The preponderance-of-the-evidence
standard "is a more-likely-than-not rule." Mulkern, 854 F.3d at
90 n.2 (quoting United States v. Vixamar, 679 F.3d 22, 29 (1st
Cir. 2012)).
Now meet James Edwards, the defendant in today's case.
Edwards pled guilty — without a plea agreement — to a bunch of
federal firearms offenses under 18 U.S.C. § 922(g).1 These pleas
added to his already long criminal record, which included
Massachusetts convictions for (1) unarmed robbery, (2) assault
with a dangerous weapon, (3) distribution of a controlled
substance, and (4) armed assault with intent to murder. The
district judge concluded that convictions (1) and (2) — unarmed
robbery and assault with a dangerous weapon, respectively — are
violent felonies. And Edwards conceded (then, as now) that
conviction (3) — distribution of a controlled substance — is a
serious drug offense. As for conviction 4 — armed assault with
intent to murder — the judge thought it is not a violent felony
because no binding caselaw directly holds that it is. So relying
on convictions (1), (2), and (3), the judge deemed Edwards an armed
career criminal and sentenced him to 15 years behind bars.
Unhappy with this outcome, Edwards appeals. But
examining the matter afresh, see United States v. Dawn, 842 F.3d
3, 7 (1st Cir. 2016), we affirm — though our analysis differs in
some respects from the judge's.
Narrowing of the Issues
Edwards attacks his sentence on a variety of grounds,
not all of which require extended discussion.
For example, Edwards insists that the judge blundered by
"imposing sentence on the basis of prior convictions that were not
included in the indictment, not admitted by [him], and not proven
to a jury beyond a reasonable doubt." Recognizing that his
argument runs smack into Almendarez–Torres v. United States, 523


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U.S. 224, 226-27 (1998), a precedent we must apply until the
Justices themselves say otherwise, he raises the issue only to
preserve it for possible Supreme Court review. So we need say no
more about that argument. And though he says that United States
v. Whindleton, 797 F.3d 105, 114 (1st Cir. 2015), cert. dismissed,
137 S. Ct. 23 (2016), and cert. denied, 137 S. Ct. 179 (2016),
holds that assault with a dangerous weapon in Massachusetts is a
violent felony, he notes his objection to that holding simply to
preserve it for possible further review. Enough said about that
issue too. With two predicates properly counted — assault with a
dangerous weapon (thanks to Whindleton) and distribution of a
controlled substance (thanks to his concession) — Edwards is left
to argue that neither the unarmed-robbery conviction nor the armed
assault-with-intent-to-murder conviction is a violent felony. And
so, his argument continues, neither conviction can provide the
necessary third predicate for his ACCA sentence. But because —
for reasons shortly stated — we conclude that his armed-assault
with-intent-to-murder conviction does qualify as an ACCA
predicate, we need not decide whether his unarmed-robbery
conviction does as well.
On, then, to the armed-assault-with-intent-to-murder
issue.


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Armed-Assault-with-Intent-to-Murder Conviction as the Third ACCA Predicate

ACCA Basics

Pertinently for Edwards's case, ACCA defines a "violent
felony" as a crime punishable by a prison term "exceeding one year"
that "has as an element the use, attempted use, or threatened use
of physical force against the person of another," see 18 U.S.C.
§ 924(e)(2)(B)(i) — this is known as the elements clause.2 And
"'physical force,'" we know, means not simply what "force" means
in physics, but "violent force — that is, force capable of causing
physical pain or injury to another person." Johnson v. United
States ("Johnson I"), 559 U.S. 133, 140 (2010).
In deciding whether the elements clause covers armed
assault with intent to murder, we look only to the crime's
statutory definition, not to Edwards's specific conduct — courts
call that the "categorical approach." See, e.g., Mathis v. United
2 ACCA's violent-felony definition also includes enumerated crimes — burglary, arson, extortion, and crimes involving the use of explosives — as well as crimes "otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(ii). Armed assault with intent to murder is not an enumerated offense. And the Supreme Court invalidated the "otherwise" clause (also known as the residual clause) in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) — a case commonly referred to as "Johnson II." That leaves us with ACCA's elements clause, as we noted above.


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States, 136 S. Ct. 2243, 2248 (2016).3 And after figuring out the
crime's definition, we must see whether "the minimum conduct
criminalized" by the statute's elements matches ACCA's violent
felony definition, see Moncrieffe v. Holder, 133 S. Ct. 1678, 1684
85 (2013) — if there is no match, then the state conviction is not
an ACCA predicate, see Mathis, 136 S. Ct. at 2248. But — and it
is an important "but" (as we shall see) — our minimum-conduct focus
"is not an invitation to apply 'legal imagination' to the state
offense; there must be 'a realistic probability, not a theoretical
possibility, that [Massachusetts] would apply its statute to
conduct that falls outside'" ACCA's violent-felony definition.
See Moncrieffe, 133 S. Ct. at 1684-85 (quoting Gonzales v. Duenas
Alvarez, 549 U.S. 183, 193 (2007)).4
Statute of Conviction
The relevant statute of conviction pertinently says that
"[w]hoever, being armed with a dangerous weapon, assaults another
3 See generally McNeill v. United States, 563 U.S. 816, 821 (2011) (adding that "when determining whether a defendant was convicted of a 'violent felony,' we . . . turn[] to the version of state law that the defendant was actually convicted of violating"); Johnson I, 559 U.S. at 138 (emphasizing that, in deciding whether a state conviction is a "violent felony," federal courts are "bound by the [state] Supreme Court's interpretation of state law, including its determination of the elements of" the statute of conviction). 4 If the statute of conviction defines more than one crime by laying out "elements in the alternative," a court uses the socalled "modified categorical approach" to see which alternative


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with intent to . . . murder shall be punished by imprisonment in
the state prison for not more than twenty years." Mass. Gen. Laws
ch. 265, § 18(b). According to Massachusetts's highest court —
the Supreme Judicial Court — armed assault with an intent to murder
requires "proof of assault (while armed with a dangerous weapon)
and a specific intent to kill that equates with malice," with
malice (in this context) meaning a lack of "'justification, excuse,
or mitigation.'"5 Commonwealth v. Vick, 910 N.E.2d 339, 350 (Mass.
2009) (quoting Commonwealth v. Johnston, 845 N.E.2d 350, 354 (Mass.
2006)). And, unsurprisingly, "an intent to kill may be inferred
from the defendant's conduct," Commonwealth v. Henson, 476 N.E.2d
947, 952 (Mass. 1985), seen in light of the surrounding
circumstances, see Commonwealth v. Lewis, 987 N.E.2d 1218, 1224
(Mass. 2013).
formed the basis of the prior conviction. See Mathis, 136 S. Ct. at 2249. This approach lets courts look at "a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. No one has argued — and correctly so — that the modified-categorical approach applies here. So we need not address it. 5 As far as the "armed with a dangerous weapon" part goes, the defendant need only have been "armed at the time of the assault; 'the weapon need not have been used.'" Commonwealth v. Bright, 974 N.E.2d 1092, 1113 (Mass. 2012) (quoting Salemme v. Commonwealth, 348 N.E.2d 799, 801 (Mass. 1976)).


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Parties' Positions
The gist of the parties' arguments is easily stated.
Focusing on the word "assault" in the phrase "armed
assault with intent to murder," Edwards correctly says that in
Massachusetts a person can commit an assault in one of two ways —
through an attempted battery or through an immediately threatened
battery. See Whindleton, 797 F.3d at 112 & n.8 (citing and quoting
Commonwealth v. Porro, 939 N.E.2d 1157, 1163 (Mass. 2010)). A
battery, he rightly adds, is a harmful or offensive touching. See
id. (citing and quoting Commonwealth v. Burke, 457 N.E.2d 622, 624
(Mass. 1983)). Relevantly for our purposes, we know that a harmful
battery results from "[a]ny touching 'with such violence that
bodily harm is likely to result,'" while an offensive battery
results from an intentional, unconsented-to touching that is an
"affront to the victim's personal integrity." Burke, 457 N.E.2d
at 624 (quoting Commonwealth v. Farrell, 78 N.E.2d 697, 705 (Mass.
1948)); see also Commonwealth v. Eberhart, 965 N.E.2d 791, 798
(Mass. 2012). Now, an offensive touching, he further and again
correctly notes, does not necessarily involve sufficient force
under Johnson I, see United States v. Martinez, 762 F.3d 127, 137
38 (1st Cir. 2014) — remember, Johnson I says the type of "force"
that comes within the elements clause is "force capable of causing
physical pain or injury to another person," see 559 U.S. at 140.


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Putting this all together, he insists that because a person may be
convicted of armed assault with intent to murder under the
offensive-touching branch of assault, the conviction is not a
predicate violent felony under ACCA's elements clause.
For its part, the government rightly points out that (we
quote from its brief) "[t]he crime of armed assault with intent to
murder adds the additional elements that a defendant be armed and
have a specific intent to kill that equates with malice." And
these "additional elements," the government continues, "negate the
possibility that a defendant might be convicted of armed assault
with the intent to murder that involves a mere attempted or
threatened offensive touching." So according to the government,
Edwards's armed-assault-with-intent-to-murder conviction is a
predicate violent felony under ACCA's elements clause.
Our Take
We believe the government has the better of this debate.
Yes, as Edwards argues, someone can commit the Massachusetts crime
of simple assault with offensive touching — the prototypical
examples being spitting on the victim, see Commonwealth v. Cohen,
771 N.E.2d 176, 178 (Mass. App. Ct. 2002), tickling her, see
Commonwealth v. Hartnett, 892 N.E.2d 805, 814 (Mass. App. Ct.
2008), or physically moving her to another room, see Parreira v.
Commonwealth, 971 N.E.2d 242, 247 (Mass. 2012). And yes, as he


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also notes, offensive touching fails the force requirement
sketched in Johnson I. See Whindleton, 797 F.3d at 113-14
(discussing Martinez, 762 F.3d at 137-38). But we cannot accept
the next part of his argument — that because the armed-assault
with-intent-to-murder statute has assault as an element and
because someone can commit an assault without the sort of "violent
force" required by Johnson I, a conviction under that statute
cannot be an ACCA predicate. For doing so would require us to
read the state statute with blinders on. And that we cannot do —
in seeing if a crime involves the use, attempted use, or threatened
use of (in Johnson I's words) "force capable of causing physical
pain or injury to another person," we must focus not just on one
element — here, assault — but on all elements. See id.
Recall how the at-issue statute outlaws (emphases ours)
"assault[] . . . with intent to . . . murder" while armed "with a
dangerous weapon," see Mass. Gen. Laws ch. 265, § 18(b) — i.e.,
the defendant must have acted with "a specific intent to kill that
equates with malice," see Vick, 910 N.E.2d at 350. Well, to our
way of thinking, an assault committed with an intent to murder the
victim becomes an attempted or threatened harmful battery — and
thus an ACCA violent felony — because of the presence of that
intent. A battery, in other words, could be merely offensive and


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not involve violent force if committed without murderous intent —
but harmful if committed with murderous intent.6
The bottom line is — as the government convincingly
argues — that the intent-to-murder element makes it implausible
that a defendant could be convicted under this statute based on an
offensive-touching approach. Still hoping to convince us
otherwise, Edwards speculates that an armed-assault-with-intent
to-murder conviction "based on a threatened or attempted offensive
touching theory" actually "is []conceivable." His argument — as
we understand it — rests on the idea that a person can cause
physical injury without using physical force in the ACCA sense.
He offers two supposed examples. One involves a person who
"attempt[s] to insert a poison pill into the mouth of a sleeping
hospital patient" without ever touching the patient. The other
involves "an attempted lethal spray with poison." Causing harm
"indirectly" like that, he writes, "can show intent to murder but
does not constitute violent force." And looking to give his
position a patina of plausibility, he drops a "cf." citation to
three assault-and-battery-by-means-of-a-dangerous-weapon cases
6 Edwards does not make — and so has waived — any argument that armed assault with intent to murder is not a violent felony because there may be cases where it is factually impossible for the attempted or threatened battery to cause death. See Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (emphasizing that "we deem waived" arguments "not made").


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that allegedly support his view that one could conceivably be
convicted of armed assault with intent to murder on an offensive
touching theory: Commonwealth v. Barrett, 436 N.E.2d 1219 (Mass.
1982), Commonwealth v. Vonberg, No. 06-P-1627, 2007 WL 4097332
(Mass. App. Ct. Nov. 16, 2007) (unpublished table disposition),
and Commonwealth v. Lord, 770 N.E.2d 520 (Mass. App. Ct. 2002).7
The Barrett defendant, you should know, sprayed his victim "in the
face with a liquid from an aerosol can." 436 N.E.2d at 1221. The
Vonberg defendant sprayed his victim "in the face with WD-40."
2007 WL 4097332, at *1. And the Lord defendant sprayed his victim
"in the face with mace." 770 N.E.2d at 522.8
We are unmoved. To the extent Edwards thinks knowingly
using poison to cause physical harm is not a use of physical force,
7 For anyone unfamiliar with legal-citation lingo, "cf." means the writer believes the "[c]ited authority supports a proposition different from the main proposition" but thinks it is "sufficiently analogous to lend support." See The Bluebook: A Uniform System of Citation 59 (Columbia Law Review Ass'n et al. eds., 20th ed. 2015). 8 On appeal, none of the defendants disputed that an assault and battery had occurred. See Barrett, 436 N.E.2d at 1223; Vonberg, 2007 WL 4097332, at *1; Lord, 770 N.E.2d at 523-26. Instead, they protested that their spraying devices were not "dangerous weapon[s]," see Barrett, 436 N.E.2d at 1223; see also Vonberg, 2007 WL 4097332, at *2-3; Lord, 770 N.E.2d at 524-25 — with "dangerous weapon" defined either as (a) an inherently dangerous item, i.e., an item "designed and constructed to produce death or great bodily injury," see Barrett, 436 N.E.2d at 1223 (quoting Commonwealth v. Appleby, 402 N.E.2d 1051, 1056 (Mass. 1980)), or as (b) a harmless item that is "capable of producing serious bodily harm" by the way it is used, see Commonwealth v.


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Supreme Court caselaw suggests the opposite. Construing a
provision banning persons previously convicted of "misdemeanor
crime[s] of domestic violence" from possessing firearms, the high
Court said physical force "encompasses even its indirect
application," like when a poisoner drops poison in a person's
drink. See United States v. Castleman, 134 S. Ct. 1405, 1414-15
(2014) (discussing 18 U.S.C. § 922(g)(9)).9 "The 'use of force'"
in the poison example, our judicial superiors explained, "is the
act of employing poison knowingly as a device to cause physical
harm." Castleman, 134 S. Ct. at 1415. So it matters not one bit
"[t]hat the harm occurs indirectly, rather than directly (as with
a kick or punch)" — if it were otherwise, "one could say that
pulling the trigger on a gun" involves no "'use of force' because
it is the bullet, not the trigger, that actually strikes the
victim," an argument that would be an absurdity. See id.
Tevlin, 741 N.E.2d 827, 833 (Mass 2001) (quoting Commonwealth v. Mercado, 509 N.E.2d 1356, 1358 (Mass. App. Ct. 1987) (rescript)). 9 A misdemeanor crime of domestic violence is an offense that . . . has, as an element, the use or attempted use of physical force . . . committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. 18 U.S.C. § 921(a)(33)(A)(ii).


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The parties argue over whether this aspect of
Castleman's physical-force analysis applies equally to ACCA's
physical-force requirement.10 We need not take sides.11 Our
reasons are twofold.
10 Edwards, for example, cites to United States v. Rico-Mejia, 853 F.3d 731, 735-36 (5th Cir. 2017), which held that "Castleman's analysis is applicable only to crimes categorized as domestic violence." Responding to Edwards, the government writes that "Castleman distinguished the requisite degree of force required for a 'misdemeanor crime of domestic violence' from that required for a 'violent felony'" — an offensive touching satisfies § 921(a)(33)(A)(ii)'s physical-force requirement but not § 924(e)(2)(B)(i)'s, Castleman holds. See 134 S. Ct. at 1410-13 (distinguishing Johnson I). But, the government adds, Castleman "made no similar distinction about the manner in which physical force may be employed" — so, as the government sees it, Castleman's conclusion that force can be applied both directly and indirectly still controls here. For support, the government cites to United States v. Hill, 832 F.3d 135, 143 (2d Cir. 2016) (applying Castleman's direct/indirect-causes analysis outside the misdemeanor-crime-of-domestic-violence context), and United States v. Haldemann, 664 F. App'x 820, 821 (11th Cir. 2016) (per curiam) (same). 11 Relying on Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015), Edwards intimates that we have already taken Castleman's poison/indirect-causes comment and limited its applicability to the misdemeanor-crime-of-domestic-violence context. Not so. Whyte noted Castleman's holding — which we mentioned in our tenth footnote — that the physical-force clause at issue there did not have same meaning as the physical-force clause at issue in Johnson I. See 807 F.3d at 470-71. Following our opinion in Whyte, the government petitioned for panel rehearing, arguing that the reach of Castleman's indirect-causes analysis extended beyond the facts of that case. But because the government débuted this argument in its rehearing petition, we said that "[f]or purposes of this case only, it is waived." See Whyte v. Lynch, 815 F.3d 92, 92 (1st Cir. 2016) (order denying rehearing petition). So Edwards is wrong to suggest that Whyte forecloses the government's argument.


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For one thing, Edwards is dead wrong in characterizing
the poisoning as an application of indirect force. The Barrett,
Vonberg, and Lord defendants directly administered the noxious
substance to the victim by spraying it in the victim's face. And
the application of poison in this way is a direct application of
force. That poison causes harm in a different way than, say, a
bullet does not mean the application is indirect. Edwards might
possibly be understood to argue that the velocity of the harmful
substance is somehow relevant to the violent-force analysis. To
the extent he does, we see no case support for that idea. Johnson
I did not require that a harmful substance be moving at a certain
velocity to qualify as violent force, but that it be "capable of
causing physical pain or injury to another person." See 559 U.S.
at 140. The force required to apply poison to a victim — while
certainly lower in newtons than the force of a bullet — is still
force with just that capability.
For another thing, nothing in Barrett, Vonberg, and Lord
suggests the defendants there assaulted the victims with murderous
intent. Again, each defendant committed an assault by means of a
dangerous weapon, which, unlike armed assault with intent to
murder, does not "require[] a showing of a specific intent to
kill." See Bright, 974 N.E.2d at 1113. Given how assault and
battery by means of a dangerous weapon and armed assault with


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intent to murder involve different types of intent, the relevance
of Barrett, Vonberg, and Lord to Edwards's situation escapes us.12
What this means is that we see no realistic probability of
Massachusetts convicting someone of armed assault with intent to
murder who had not used, attempted, or threatened "force capable
of causing physical pain or injury to another person," see Johnson
I, 559 U.S. at 140 — the possibility Edwards pushes falls under
the heading of imaginative thinking, which the Supreme Court has
told us not to rely on in applying the categorical approach, see
Moncrieffe, 133 S. Ct. at 1684-85.
With that and at long last, we hold that Edwards's armed
assault-with-intent-to-murder conviction counts as his third ACCA
predicate.

Outcome: