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Date: 01-24-2018

Case Style:

United States of America v. Joseph J. Kennedy

District of Massachusetts Federal Courthouse - Boston, Massachusetts

Case Number: 15-2298

Judge: Kayatta

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Randall E. Kromm and Carmen M. Ortiz

Defendant's Attorney: Oscar Cruz, Jr. - FPD

Description: Joseph Kennedy appeals his
conviction and sentence for being a felon in possession of
ammunition in violation of 18 U.S.C. § 922(g)(1). Challenging his
conviction, Kennedy argues that the district court erred in denying
his motion to suppress evidence obtained from a warrantless search
of the vehicle he was driving immediately before his arrest.
Challenging his sentence, he argues that the district court erred
in finding that he qualified for a mandatory minimum sentence under
the Armed Career Criminal Act ("ACCA"). We affirm Kennedy's
conviction, but vacate his sentence and remand for resentencing.
I. Background
We draw from the district court's findings of fact for
the circumstances leading to Kennedy's arrest and indictment. In
the spring of 2014, Kennedy was on federal supervised release when
a warrant issued for his arrest based on allegations that he had
violated the terms of his supervision. While several officers
from the Boston Police Department and the United States Marshals
Service were conducting surveillance in Charlestown, Massachusetts
at the address of Kennedy's longtime girlfriend, the Quincy Police
Department transmitted a "Be On the Lookout" bulletin. The
bulletin explained that Kennedy was wanted for a larceny that had
occurred in Quincy, Massachusetts the night before. The
surveillance team learned, from a United States Marshal who
communicated the information in the bulletin, that the larceny had
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involved the theft of a safe containing ammunition and possibly
weapons, pepper spray, and drugs. The officers were also told
that Kennedy might be driving a gray Honda Fit and were provided
with the license plate number of that vehicle.
Later that afternoon, a gray Honda Fit matching the
bulletin's description approached the surveillance location. One
officer recognized Kennedy as the driver of the car from a
photograph he had been shown previously. Kennedy parked the car
legally near his girlfriend's apartment and exited the vehicle.
When the officers approached Kennedy to arrest him, he ran away
but was quickly apprehended. He was handcuffed and removed from
the scene. Once Kennedy was secured and away from the car, one of
the officers approached the Honda Fit. Through the window of the
vehicle, the officer could see clutter on the backseat, including
duffel bags, garbage bags, backpacks, and clothing. He also saw
a large, box-shaped object on the backseat mostly covered by a
duffle bag. A small visible portion of the box appeared to be
gray and metallic. Believing the object to be the stolen safe,
the officers decided to tow the vehicle. Before doing so, they
opened the car and searched it. Inside, they uncovered a forcedopen
safe containing drug paraphernalia and the ammunition that
served as the basis for Kennedy's charge in this case.
After Kennedy was indicted, he moved to suppress all
evidence stemming from the warrantless search of the Honda Fit, on
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the grounds that the search violated the Fourth Amendment. After
a one-day evidentiary hearing, at which two officers testified,
the court denied the motion, finding that the automobile exception
applied and, in the alternative, that the officers had probable
cause to believe the car itself had been used during the theft and
therefore was the proper subject of an inventory search. Kennedy
subsequently entered a conditional guilty plea, reserving the
right to appeal the court's denial of his motion to suppress.
At sentencing, the primary issue was whether Kennedy
qualified for a sentencing enhancement under the ACCA based on
state crimes to which he had previously pled guilty. The parties
presented arguments regarding six potential predicates: two
convictions for Massachusetts assault with a dangerous weapon
("ADW"), three convictions for Massachusetts assault and battery
with a dangerous weapon ("ABDW"), and one for Massachusetts
aggravated assault and battery ("AA&B"). The court found that it
was bound by First Circuit law to count the two ADW offenses as
violent felonies and therefore as qualifying ACCA convictions.
As to the remaining offenses, the district court began
by looking at the plea colloquy between Kennedy and the state
court. The transcript of the colloquy showed that Kennedy had
been charged with both AA&B and ABDW resulting from the same
incident. In that incident, as described by the prosecutor,
Kennedy and another attacker approached the victim, one of the two
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attackers punched him, the victim fell backward and hit his head
on a pole, and both Kennedy and the other attacker continued to
punch and kick the victim once he was on the ground. Kennedy was
charged with one count of AA&B and three counts of ABDW, one for
assault and battery with a pole and two for assault and battery
with a "shod foot," due to repeated kicks to the victim.
After the prosecutor recited these facts at the plea
hearing, the state court asked Kennedy various questions about his
plea. Several of Kennedy's responses to important questions such
as "Did you commit those acts?" were deemed "Unintelligible" by
the reporter who completed the transcript, which was not requested
until long after the proceeding. At sentencing in the district
court, the government presented a common-sense argument regarding
how the court should interpret the incomplete transcript of the
plea colloquy: If any of Kennedy's responses had been "No," or if
Kennedy had vacillated at all, the state court would have stopped
and asked follow-up questions, rather than immediately continuing
with the colloquy. The government also explained that it had
listened to the audio of the state court proceeding and, although
it could not make out Kennedy's responses, it could tell that they
were very brief, consistent with one-word answers. Finally, the
government emphasized that after asking Kennedy numerous
questions, the state court asked, "Have you been confused with any
of my questions?" to which Kennedy audibly responded "I have not."
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On this basis, the government urged the district court to infer
that Kennedy had answered "Yes" to the key questions by the state
court (and "No" where appropriate).
Accepting the government's interpretation of the plea
colloquy transcript, the district court found that Kennedy had
pled guilty to three additional offenses (AA&B, ABDW with a pole,
and ABDW with a shod foot) that constituted violent felonies, any
one of which, when added to the two ADW offenses, was sufficient
to satisfy the ACCA. The court therefore applied the ACCA
enhancement and sentenced Kennedy to 180 months' imprisonment, the
minimum sentence under the statute. This timely appeal followed.
II. Discussion
We discuss in turn Kennedy's two objections to the
proceedings below, beginning with the suppression challenge.
In reviewing the denial of a motion to suppress, we
review factual findings for clear error and conclusions of law,
including ultimate constitutional determinations such as the
existence of probable cause, de novo. See Ornelas v. United
States, 517 U.S. 690, 699 (1996); see also United States v.
Camacho, 661 F.3d 718, 724, 726–27 (1st Cir. 2011) (reviewing the
district court's determination of reasonable suspicion de novo).
Under the automobile exception to the Fourth Amendment's
warrant requirement, see California v. Acevedo, 500 U.S. 565, 579
- 7 -
(1991), the question before us is whether the totality of the
circumstances created a "fair probability that . . . evidence of
a crime" would be found in the Honda Fit. United States v. Dion,
859 F.3d 114, 132 (1st Cir. 2017) (alteration in original) (quoting
United States v. Silva, 742 F.3d 1, 7 (1st Cir. 2014)). When the
officers searched the vehicle, they knew the following
information: Kennedy was wanted for the theft of a safe containing
ammunition and possibly other items that had occurred the previous
night; there was clutter in the backseat of the vehicle he had
been driving immediately before his arrest, including bags and
clothing piled on top of what appeared to be a large, box-shaped
item consistent with the size and shape of a safe; and the small
portion of the box-shaped item that was exposed appeared gray in
color and metallic. These were all facts found by the district
court based on the testimony of two of the police officers involved
in Kennedy's arrest, and these findings were not clearly erroneous.
See Camacho, 661 F.3d at 723 ("A clear error exists only if, after
considering all the evidence, we are left with a definite and firm
conviction that a mistake has been made." (internal quotation marks
omitted)); United States v. Barnes, 506 F.3d 58, 62 (1st Cir. 2007)
("Clear error does not exist if any reasonable view of the evidence
supports the decision." (internal quotation marks omitted)). This
factual basis -- together with reasonable inferences drawn
therefrom -- was sufficient to establish a "fair probability" that
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evidence of the larceny would be found inside the vehicle. Dion,
859 F.3d at 132.
Kennedy does not dispute these facts but nevertheless
argues that the district court erred in denying his motion to
suppress for two reasons: The officers did not have specific
information linking the Honda Fit to the larceny and the passage
of ten to twelve hours between when the larceny was reported and
when Kennedy was arrested renders any link between the crime and
the car weak.
Assuming Kennedy's first contention is true, it is
irrelevant. The officers' search was proper so long as there was
probable cause to believe the Honda Fit contained evidence of the
larceny. That the Honda Fit was directly used in the commission
of the larceny -- as opposed to, for example, after the larceny to
transport the stolen items -- is not a necessary condition for
that conclusion. And Kennedy's assertion that there was "no
evidence of the theft in plain view in the Honda" is simply untrue.
Although the district court correctly found that the full safe was
not in plain view, what was in plain view as established by the
officers' testimony was more than enough to support a reasonable
belief that the object was a safe.
As for Kennedy's second argument, the passage of ten to
twelve hours after the report of the Quincy larceny does not render
the search unconstitutional. While there may be circumstances in
- 9 -
which the passage of half a day turns a tip into stale information
that is insufficient for probable cause, cf. United States v.
Zayas-Diaz, 95 F.3d 105, 114–15 (1st Cir. 1996), this is not one
of those cases. Simply put, what the officers saw in the car
served as verification of the information in the bulletin and
ameliorated any concern that the information was stale. Given the
totality of the circumstances in this case, there was probable
cause to search the Honda Fit.
Because we conclude that the automobile exception
applies and therefore that the search of the Honda Fit was
reasonable, we can affirm Kennedy's conviction without any need to
determine whether the district court's alternative basis for
denying his motion to suppress was proper.
We turn now to Kennedy's challenge to his sentence.
Pursuant to the ACCA, an individual convicted of being a felon in
possession of a firearm or ammunition under 18 U.S.C. § 922(g)(1)
is subject to a mandatory minimum sentence of fifteen years if he
also has three prior convictions for violent felonies. 18 U.S.C.
§ 924(e)(1). The ACCA defines a violent felony, in relevant part,
as any crime punishable by imprisonment over one year 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).
- 10 -
It is undisputed that Kennedy has two prior convictions
for Massachusetts ADW, an offense that qualifies as a violent
felony under United States v. Whindleton, 797 F.3d 105, 116 (1st
Cir. 2015). The question before us is whether Kennedy has a third
predicate offense for ACCA purposes. There are two possible
contenders for Kennedy's third qualifying offense: Massachusetts
AA&B or Massachusetts ABDW, to both of which Kennedy pled guilty
in February 2010. In its supplemental brief, the government
informed us that it "no longer seeks to rely" on the AA&B
conviction as a basis to affirm Kennedy's ACCA sentence. Thus, we
address only whether Kennedy's ABDW conviction qualifies as a
violent felony.1 This "is a legal question we review de novo."
Id. at 108.
Massachusetts ABDW comes in two forms: intentional and
reckless. See United States v. Tavares, 843 F.3d 1, 12 (1st Cir.
2016). This court has described the two forms of ABDW as:
(1) The intentional and unjustified touching
of another by use of a dangerous weapon,
(2) The intentional commission of a wanton or
reckless act [with a dangerous weapon] causing
more than transient or trifling injury to
1 At the government's behest, we focus even more narrowly on
Kennedy's two convictions for assault and battery with a shod foot,
rather than on the conviction arising out of the victim falling
against a pole.
- 11 -
Id. at 14 (alteration in original). We have held that the first,
intentional form of Massachusetts ABDW is a crime of violence under
the force clause of section 4B1.2(a)(1) of the United States
Sentencing Guidelines. Tavares, 843 F.3d at 13. That holding
fits equally well with the ACCA's force clause. See United States
v. Edwards, 857 F.3d 420, 427 n.12 (1st Cir. 2017). More recently,
we held that reckless ABDW is not a violent felony under the force
clause of the ACCA. United States v. Windley, 864 F.3d 36, 39
(1st Cir. 2017) (per curiam) (adopting the analysis in Bennett v.
United States, 868 F.3d 1 (1st Cir.), withdrawn as moot by 870
F.3d 34 (1st Cir. 2017)). Thus, ABDW is not categorically a
violent felony, so we cannot affirm Kennedy's sentence on that
basis. See United States v. Faust, 853 F.3d 39, 51 (1st Cir.),
reh'g denied, 869 F.3d 11 (1st Cir. 2017) (explaining that under
the categorical approach, a court must first determine "whether
all of the conduct covered by the statute categorically requires
violent force"). Instead, to affirm Kennedy's sentence, we would
need to find both that Massachusetts ABDW is divisible into its
intentional and reckless forms, and that Kennedy pled guilty to
the intentional form. See Mathis v. United States, 131 S. Ct.
2243, 2249, 2256 (2016).
The question whether Massachusetts ABDW is divisible
into elementally distinct forms has no easy answer. In Tavares,
we attempted to predict how the Massachusetts Supreme Judicial
- 12 -
Court would rule. 843 F.3d at 14-15. But, as we later explained,
we did so without the benefit of any argument to proceed otherwise.
See United States v. Tavares, 849 F.3d 529, 529–30 (1st Cir. 2017)
(denying petition for rehearing). We later pointed toward a more
"backward-looking," "historical" approach in attempting to gauge
the divisibility of another Massachusetts offense. Faust, 853
F.3d at 56-57 (quoting McNeill v. United States, 563 U.S. 816,
820, 822 (2011)). In this case now before us, we can avoid the
difficult question of divisibility because we find that, even if
ABDW is divisible into intentional and reckless forms, the record
of Kennedy's prior convictions do not allow us to find that he
pled guilty to intentional ABDW. Our reasoning follows.
When an offense is divisible (or, as here, assumed to be
divisible), we look to so-called Shepard documents to see if we
can determine that the defendant was previously convicted of the
ACCA-qualifying form of the offense (here, intentional ABDW).
Shepard v. United States, 544 U.S. 13, 26 (2005) (holding that, in
determining whether a defendant pled guilty to a qualifying
offense, a sentencing court may look to the charging document, the
plea agreement, the plea colloquy transcript, or to some
"comparable judicial record"). The relevant record in this case
consists of the following.
First, the criminal complaint lacks any express
allegation concerning Kennedy's mental state. It alleges
- 13 -
conclusory facts (e.g., Kennedy "did, by means of a dangerous
weapon, a shod foot, assault and beat" the victim) that certainly
sound like an intentional act. But cf. United States v. Holloway,
630 F.3d 252, 262 (1st Cir. 2011) (vacating a sentence under the
ACCA's now-severed residual clause because boilerplate language
"did assault and beat" in an indictment was insufficient to
establish a violent felony). But it also alleges "serious bodily
injury," a fact only required to sustain the reckless version of
the offense.
Second, there is the clerk's description of the accepted
plea at the end of the colloquy. It, like the criminal complaint,
makes no mention of Kennedy's state of mind, describing the
judgment as simply a finding of guilty on charges of "assault and
battery with a dangerous weapon."
Third, there is the prosecutor's description at the plea
colloquy of the facts giving rise to the charges, together with
Kennedy's admission that he "commit[ted] those acts."2 Those
facts, like the statements in the complaint, plainly describe
conduct that one would perform intentionally. Specifically, the
prosecutor described the assault as follows:
2 Although the transcript reflects that many of Kennedy's
responses to questions by the state court were "Unintelligible,"
we, like the district court, assume that Kennedy answered "Yes" to
these questions (and "No" where appropriate), thereby pleading
guilty to the facts presented by the prosecutor.
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[The victim] was jumped by two white males who
then fled the area. . . . [O]ne of the
individuals punched him. He fell to the
ground; fell back, hitting his head on a pole.
They continued to punch him and kick him when
he was on the ground.
The government argues that the facts alleged, admitted,
and "found by the district court show that Kennedy engaged in
intentional, not merely reckless, conduct." So the question is
posed, do we infer from admitted behavior that a defendant was
convicted of the ACCA-qualifying form of the offense whose elements
could be satisfied by the behavior? Or do we instead limit our
review of the plea colloquy to determine whether the defendant
actually pled guilty to that form of the offense? The Supreme
Court's case law arguably points in several directions on this
question. In Shepard, the Court stated that in pleaded cases, we
can look to "the statement of factual basis for the charge, Fed.
Rule Crim. Proc. 11(a)(3), shown by a transcript of plea
colloquy . . . or by a record of . . . findings of fact adopted by
the defendant upon entering the plea." 544 U.S. at 20; see also
id. at 25 (plurality opinion) (noting that "the defendant's own
admissions or accepted findings of fact confirming the factual
basis for a valid plea" can provide certainty of a generic
finding). Shepard, though, also suggests that what we look for in
such an examination is whether there is an admission of "the
generic fact," id. (plurality opinion), which is the fact that
- 15 -
differentiates, for example, a burglary that is a violent felony
(burglarizing a building or structure) from the overly broad nongeneric
burglary (which includes burglarizing a car). Here, the
generic fact would be that Kennedy acted intentionally, which he
never admits other than by implication.
More generally, the Court's subsequent direction
instructs that the relevant inquiry does not train on ascertaining
whether Kennedy admitted facts that could support a conviction for
intentional ABDW. See Mathis, 136 S. Ct. at 2254 (explaining that
the modified categorical approach "is not to be repurposed as a
technique for discovering whether a defendant's prior
conviction . . . rested on facts . . . that also could have
satisfied the elements of a generic offense"). Rather, we look at
the record documents to determine the elements of the offense for
which Kennedy was convicted. "How a given defendant actually
perpetrated the crime -- what we have referred to as the
'underlying brute facts or means' of commission -- makes no
difference[,] even if his conduct fits within the generic
offense . . . ." Id. at 2251 (internal citation omitted); see
also Descamps v. United States, 570 U.S. 254, 262–63 (2013)
(emphasizing that a court's responsibility is "not to determine
'what the defendant and state judge must have understood as the
factual basis of the prior plea,'" but rather "to assess whether
the plea was to the version of the crime . . . corresponding to
- 16 -
the generic offense" (quoting Shepard, 544 U.S. at 25–26 (plurality
opinion))); id. (emphasizing the "narrow scope" of the review under
the modified categorical approach). In light of this guidance
from the Court, we have observed that the task of the sentencing
court "is not to fit the facts of the individual defendant's
conduct into one of the divisible offenses." Faust, 853 F.3d at
We think it best to follow the Court's most recent and
direct pronouncements, as we did in Faust. We look to Kennedy's
plea colloquy not to see if the admitted facts could support a
conviction for the intentional form of ABDW, but instead to see if
he was charged with and pled guilty to that offense. A
hypothetical illustrates why we proceed in this manner.
Imagine that the Massachusetts statute set forth two
plainly separate (and thus completely divisible) offenses:
intentional ABDW and reckless ABDW. Now picture a criminal
complaint or indictment charging "reckless ABDW," a plea colloquy
admitting to facts such as we have here, and a judgment of
conviction for "reckless ABDW." Clearly, under Descamps, we would
decide the conviction to be for reckless ABDW notwithstanding the
facts admitted during the colloquy. Conversely, if the complaint
and judgment alleged intentional ABDW, then we would regard the
conviction as being for that offense.
- 17 -
Here, the government asks us to view Massachusetts ABDW
just as in the hypothetical: two divisible offenses with distinct
elements. And the facts Kennedy admitted to are just as in the
hypothetical. What is missing -- in the complaint, in the
colloquy, and in the judgment -- is any specificity as to which
offense was charged and admitted. It is as if the complaint and
judgment said "intentional or reckless ABDW." And if they so
stated, we certainly could not say -- much less with "Taylor's
demand for certainty," Mathis, 136 S. Ct. at 2257 (quoting Shepard,
544 U.S. at 21) -- that Kennedy was convicted of a qualifying
predicate offense under the ACCA. See Faust, 853 F.3d at 59
("Facts that are as consistent with intentional [assault and
battery on a police officer] as they are with reckless ABPO can
hardly be said to 'speak plainly.'"). Rather, we would have to
say that, even assuming ABDW is divisible, the conviction was not
plainly for one form rather than the other.
Although we have at times suggested that courts may draw
inferences from facts presented in a plea colloquy, see United
States v. Miller, 478 F.3d 48, 52 (1st Cir. 2007) (noting that "an
inquiring court has the right to draw reasonable inferences from
the evidence" and need not "wear blinders" or "leave common sense
out of the equation"), we have generally declined to do so for
questions of mens rea, see United States v. Martinez, 762 F.3d
127, 136 (1st Cir. 2014) (holding that the defendant's prior
- 18 -
conviction was not a crime of violence under the sentencing
guidelines even though he admitted that he "struck" his girlfriend
because there was no showing that he confessed to the "added gloss"
of doing so intentionally, rather than recklessly); cf. id. n.5
(setting aside the "perhaps more difficult question of whether,
when the elements of two or more offenses" overlap, "a plea
colloquy in which a defendant admits to facts that might have given
rise to a conviction under more than one of them nevertheless
permits a sentencing court to conclude that the admissions were
legally necessary components of a plea to a more serious charge");
Patel v. Holder, 707 F.3d 77, 82 (1st Cir. 2013) (applying the
modified categorical approach in the immigration context and
finding that the prosecutor's description of the offense "can only
tell us so much about what was in [the defendant's] own mind during
the crime").
Another way to think about this question is to consider
the plea context as an analogue to trial. The Supreme Court has
made clear that the modified categorical approach applies in both
situations, and in the same manner. See Shepard, 544 U.S. at 19.
For tried cases, sentencing courts are instructed to look to
charging documents, jury instructions, and jury verdicts (or the
judge's formal rulings of law and findings of fact in a bench
trial) to determine the nature of the prior conviction. See id.;
Taylor v. United States, 495 U.S. 575, 602 (1990). Neither Taylor
- 19 -
nor Shepard allows courts to look to trial testimony for the facts
presented or admitted to by the defendant. That was exactly what
the Supreme Court sought to avoid by imposing the categorical
approach in the first place. See Taylor, 495 U.S. at 601
(suggesting that where the charging paper does not reveal the
theory presented to the jury, it would be inappropriate to allow
the government to introduce the trial transcript before the
sentencing court); cf. Descamps, 570 U.S. at 274 (noting that "we
have expressly and repeatedly forbidden" courts from asking
whether a particular set of facts leading to a conviction conforms
to an ACCA offense). This analogy to tried cases should guide our
application of the modified categorical approach in plea cases
like Kennedy's. We can look to the plea colloquy, see Shepard,
544 U.S. at 20, but not for statements and admissions of the type
that might show up in testimony at trial. Rather, we are looking
for something that resembles what we would find in a charging
document or jury verdict in a tried case. Cf. Descamps, 570 U.S.
at 272 ("A prosecutor charging a violation of a divisible statute
must generally select the relevant element from its list of
This mode of analysis admittedly leaves little role for
much of the plea colloquy in the modified categorical approach,
just as it leaves little room for trial testimony in tried cases.
The colloquy, though, remains relevant because it could very well
- 20 -
reflect not just the facts of the defendant's conduct, but also
that he was charged with and pled to a particular version of the
offense. In other words, Kennedy's colloquy might have -- but did
not -- contain an explicit discussion of intentional or reckless
ABDW. A colloquy, unlike the one here, might also reflect facts
that simply could not support one form of the offense.
Our analysis presumes that defendants may admit to facts
that are not necessary to support a conviction on the charge
brought against them. We are in good company in so presuming.
See Mathis, 136 S. Ct. at 2253 ("[A] defendant may have no
incentive to contest what does not matter under the law . . . .");
Descamps, 570 U.S. at 270 (noting that defendants often have
"little incentive to contest facts" that are "irrelevant to the
proceedings"). Two tendencies make it especially likely that a
defendant will admit to additional facts above and beyond those
necessary for his conviction. First, where, as here, there is no
clear difference in the sentencing range for the various forms of
the offense, a defendant has no reason to clarify the nature of
his admission. See Mass. Gen. Laws ch. 265 § 15A(b) ("Whoever
commits an assault and battery upon another by means of a dangerous
weapon shall be punished by imprisonment in the state prison for
not more than 10 years or in the house of correction for not more
than 2 1/2 years, or by a fine of not more than $5,000, or by both
such fine and imprisonment."). Second, in the context of a plea
- 21 -
bargain, defendants frequently plead guilty to lesser charges than
those originally brought against them; as a result, the facts
alleged and admitted to at the plea colloquy can often support the
greater charge. The First Circuit regularly affirms convictions
and sentences arising out of these situations. See, e.g., United
States v. Sánchez-Colberg, 856 F.3d 180 (1st Cir. 2017) (affirming
conviction and sentence where the defendant pled guilty to
possessing marijuana and certain firearms in exchange for the
government's dismissal of other charges and the facts alleged at
the plea colloquy supported those additional charges); United
States v. Díaz-Bermúdez, 778 F.3d 309 (1st Cir. 2015) (similar);
see also United States v. Díaz-Concepción, 860 F.3d 32 (1st Cir.
2017) (affirming conviction in similar situation); United States
v. Santiago Miranda, 654 F.3d 130 (1st Cir. 2011) (same). Relying
too heavily on the facts admitted in a plea colloquy could
therefore threaten to deprive many defendants of the benefit of
their bargains. See Taylor, 495 U.S. at 601–02 ("[I]f a guilty
plea to a lesser, nonburglary offense was the result of a plea
bargain, it would seem unfair to impose a sentence enhancement as
if the defendant had pleaded guilty to burglary.").
In sum, even assuming that intentional ABDW is a
separate, divisible form of Massachusetts ABDW, the record to which
we are allowed to look does not plainly show that Kennedy pled
guilty to that form of the offense. Mathis, 136 S. Ct. at 2257.
- 22 -
Therefore, Kennedy's ABDW conviction cannot serve as his third
ACCA predicate and, since the government does not point to any
other crime that could qualify, Kennedy was improperly sentenced
as an armed career criminal. We therefore vacate the mandatory
minimum sentence imposed by the district court and remand for
resentencing without the ACCA enhancement.3

* * *

3 Kennedy has also preserved an argument that, even if his
ABDW convictions were for violent felonies under the ACCA, unless
proven or admitted in this subsequent case, they cannot be used to
increase the statutory minimum or maximum sentence that would
otherwise apply. Setting aside that we are bound by Almendarez-
Torres v. United States, 523 U.S. 224, 243–47 (1998), we need not
reach this question due to our conclusion that Kennedy's ACCA
sentence was improper on other grounds.

Outcome: For the foregoing reasons, we affirm Kennedy's conviction and vacate his sentence.

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