US v. Dancy

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; David H. Souter, Associate Supreme Court Justice and Norman H. Stahl, Appellate Judge. Published. [09-2628]

Case: 09-2628 Document: 00116196101 Page: 1

Date Filed: 04/13/2011

Entry ID: 5542037

United States Court of Appeals
For the First Circuit

No. 09-2628
UNITED STATES,
Appellee,
v.
WILLIE DANCY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

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.

April 13, 2011

*

The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.

Case: 09-2628 Document: 00116196101 Page: 2

LYNCH, Chief Judge.

Date Filed: 04/13/2011

Entry ID: 5542037

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

mistrial

and

prejudicial,

that

he

was

entitled

to

a

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 (2008), and Johnson v. United States,
130 S. Ct. 1265 (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

-2-

Case: 09-2628 Document: 00116196101 Page: 3

Date Filed: 04/13/2011

Entry ID: 5542037

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-CR-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).
supplement that description with testimony from the record.

We

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

-3-

Case: 09-2628 Document: 00116196101 Page: 4

Date Filed: 04/13/2011

Entry ID: 5542037

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.
cornrow

"He described the shooter as a black male with a

hairstyle,

dressed

in

lettering and dark blue jeans.

a

gray

hooded

sweatshirt

with

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's2 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

1

Reardon testified that he did not actually think that
Taylor was the shooter, but mentioned the resemblance in order to
improve the description for other officers who knew Taylor.
2

Reardon testified that he could not see the actual rear
door to Boomer's because of a picket fence in the way.
-4-

Case: 09-2628 Document: 00116196101 Page: 5

Walls.

Date Filed: 04/13/2011

Entry ID: 5542037

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.
This man was Dancy.

Id. at *2.

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.
at *2.

Id.

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

-5-

Case: 09-2628 Document: 00116196101 Page: 6

Date Filed: 04/13/2011

Entry ID: 5542037

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,

to

Walls

officers.

yelled

"gun"

several

times

alert

the

other

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

3

When defense counsel asked Walls why he didn't just pull
the gun out of Dancy's pocket himself, Walls replied, "It's far
more dangerous if you take it out, because I'm--he's still fighting
me. I am still struggling with him. I want it in that pocket,
contained with my hand on it, because that's the safest location
. . . . If it comes out, who knows what happens then."
4

During the suppression hearings, Trooper Walls testified
that the revolver frame stayed in Dancy's pocket during the entire
struggle, and both Officer Cesarini and Officer Hyland testified
that it was ultimately recovered from Dancy's pocket rather than
the floor, but the district court apparently found that the account
in Officer Hyland's written report that he picked all of the pieces
up off the floor was more consistent with the gun's broken
condition.
United States v. Dancy, No. 04-CR-10387, 2007 WL
2789279, at *2 n.4 (D. Mass. Sept. 25, 2007).
-6-

Case: 09-2628 Document: 00116196101 Page: 7

Dancy's jacket pocket.

Date Filed: 04/13/2011

Entry ID: 5542037

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.
kicked the pistol farther under the table.

Jones

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

-7-

Case: 09-2628 Document: 00116196101 Page: 8

convicted of a felony.

Date Filed: 04/13/2011

Entry ID: 5542037

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

-8-

Case: 09-2628 Document: 00116196101 Page: 9

Date Filed: 04/13/2011

Entry ID: 5542037

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 ACCA. Dancy disputed that he had the requisite three predicate
offenses.

He had twice pled guilty to drug charges; he originally

disputed that he was convicted on these charges but now concedes
that both are proper ACCA predicates.
convictions for ABPO and ABDW.
ABDW for each offense.

He also had two sets of

He had pled guilty to both ABPO and

At his federal sentencing Dancy objected

that these two offenses should be counted as only one offense
because, although the charges stemmed from two separate arrests two
months apart, they were consolidated for sentencing by the state
court.

Finally, a set of state drug charges had been disposed of

as "guilty filed," a disposition Dancy argued did not constitute a
conviction under Massachusetts law.

The district court found that

Dancy qualified as an armed career criminal under the ACCA and
sentenced

him

imprisonment.

to

the

This

statutory

was

a

minimum

downward

of

fifteen

departure,

to

years'

which

the

prosecution agreed, from the guideline range of 235 to 293 months.
II. CHALLENGES TO THE CONVICTION
A. Motion to Suppress
In reviewing a motion to suppress, we review de novo the
district

court's

legal

determinations,

-9-

including

the

ultimate

Case: 09-2628 Document: 00116196101 Page: 10

Date Filed: 04/13/2011

Entry ID: 5542037

probable cause and reasonable suspicion determinations, and review
for

clear

error

determinations.

its

findings

of

fact

and

credibility

See United States v. Battle, No. 10-1058, 2011 WL

724735, at *2 (1st Cir. Mar. 3, 2011); see also Ornelas v. United
States, 517 U.S. 690, 699 (1996).

We "construe the record in the

light most favorable to the district court's ruling," United States
v. Cook, 277 F.3d 82, 84 (1st Cir. 2002), and we "will uphold the
denial of a motion to suppress as long as any reasonable view of
the evidence supports it," Battle, 2011 WL 724735, at *2.
While officers must have probable cause in order to
arrest, the Supreme Court established in Terry v. Ohio, 392 U.S. 1
(1968), and its progeny that "the police can stop and briefly
detain a person for investigative purposes even if the officer
lacks probable cause if the officer has reasonable suspicion
supported by articulable facts that 'criminal activity may be
afoot.'"

United States v. Ramos, 629 F.3d 60, 65 (1st Cir. 2010)

(citation omitted) (quoting Terry, 392 U.S. at 30).

Both the

initial seizure and the actions the police take thereafter must be
reasonable.

Id.

A Terry stop may lead to probable cause for

arrest when "the circumstances giving rise to reasonable suspicion"
are combined with "the developments that unfold[] during the Terry
stop."

United States v. Lee, 317 F.3d 26, 32 (1st Cir. 2003).
Dancy argues that the motion to suppress should have been

granted based on the district court's primary conclusion "that

-10-

Case: 09-2628 Document: 00116196101 Page: 11

Date Filed: 04/13/2011

Entry ID: 5542037

Trooper Walls's attempt to physically restrain Dancy was a seizure
tantamount to a formal arrest."

Dancy, 2007 WL 2789279, at *3.

He

argues that probable cause is necessary for arrest and that the
officers had no probable cause when Walls first attempted to
physically restrain Dancy.

Alternatively, Dancy argues that even

if there was reasonable suspicion to support an investigative stop,
there was never reason to frisk him for weapons.
We agree with the district court that the record presents
an escalating series of events in which each step taken by the
officers

and

Dancy

led

reasonably

to

the

next.

From

the

"reasonably thorough physical description" of the street shooter
and his clothing,5 the likelihood the shooter had gone into the
bar, the "almost immediate apprehension (within three to five
minutes of Reardon's initial observations)," and the obvious effort
Dancy made to move away from Walls, Walls had ample reasonable
suspicion to stop Dancy and investigate further.

Id.

In light of

those background facts, we also agree with the district court that
when Dancy put his hand in his pocket in a way which suggested to
an experienced officer that Dancy was putting his hand on a gun,
Walls had even more reason to stop and investigate Dancy, including

5

Walls's suspicion that Dancy was the shooter Reardon had
described was not made less reasonable by the fact that Dancy was
wearing a leather jacket atop the other clothes Reardon had
mentioned.
As Reardon explained on cross-examination, it would
have been logical for Dancy, who had just fired a gun in a public
intersection, to want to alter the clothing he was wearing in case
observers called the police and described what they had seen.
-11-

Case: 09-2628 Document: 00116196101 Page: 12

Date Filed: 04/13/2011

Entry ID: 5542037

through a pat frisk in order to see if there was a weapon that
could pose a risk to the officers.

See id.

We reject Dancy's contention that the officers were
required to investigate more before they could frisk him for
weapons.

"Officers are permitted to take actions to protect their

own safety and the safety of others in the area," including
conducting a pat-frisk if under all the circumstances they have "a
particularized and objective basis to suspect the individual ha[s]
a weapon."

United States v. Mohamed, 630 F.3d 1, 6 (1st Cir.

2010); see also Estrada v. Rhode Island, 594 F.3d 56, 66 (1st Cir.
2010). Officer Walls had a particular, objective reason to suspect
that Dancy was armed and involved in criminal activity.
It was when Walls felt what he knew to be a firearm in
Dancy's pocket that he yelled "gun" several times and struggled
with Dancy until Dancy was subdued and on the ground.

Even if

Walls's first contact with Dancy was a momentary "seizure" of Dancy
and the gun in his pocket, it was Dancy who then escalated and
prolonged the interaction by resisting Walls's attempts to secure
the weapon.

Dancy's attempt to take the gun out of his pocket and

hand it off rather than give it to the police certainly justified
the police in subduing him, placing him formally under arrest, and
retrieving the gun parts from the floor.
Little is to be gained by parsing this rapid sequence of
events frame by frame.

From the start there was reasonable

-12-

Case: 09-2628 Document: 00116196101 Page: 13

Date Filed: 04/13/2011

Entry ID: 5542037

suspicion under Terry justifying an investigative search, and there
were particularized and objective reasons to believe Dancy was
armed, justifying a frisk for weapons.
F.3d

at

5-6

(finding

officer

had

See generally Mohamed, 630
reasonable

suspicion

that

individual, apprehended a few minutes after a shooting, was the
shooter--despite

small

disparities

between

individual's

and

shooter's reported clothing--and that pat-frisk for weapons was
reasonable).

By the end there was more than ample probable cause

to have seized the .22 caliber revolver and to have arrested Dancy.
B. Other Arguments
We briefly address the five other arguments Dancy makes
challenging his conviction.
Three

of

certain evidence.

Dancy's

claims

challenge

the

admission

of

First, he argues for the first time on appeal

that testimony and other evidence relating to uncharged misconduct,
that is, the shooting that set off the chain of events leading to
his arrest, was irrelevant to the actual charged offense and
deprived him of a fair trial by focusing a significant portion of
the trial on what he characterizes as mere propensity evidence.
Second, he argues to us, also for the first time on appeal, that
expert

testimony

that

the

.22

revolver

was

a

firearm

under

Massachusetts law misled the jury as to its obligation to apply the
federal statute.

Third, Dancy argues, as he did in the district

court, that Officer Telford's testimony recounting part of the

-13-

Case: 09-2628 Document: 00116196101 Page: 14

Date Filed: 04/13/2011

Entry ID: 5542037

conversation he overheard between Jones and Dancy in the cell block
was improper hearsay evidence.
Dancy's fourth argument, which he also made to the
district court, is that the prosecutor's misstatement of the
evidence during her closing argument, which involved summarizing
more of the cell-block conversation overheard by Telford than had
actually been elicited from Telford during trial, required the
district court to grant his motion for a mistrial.

We discuss

these four arguments together.
We review the two claims that Dancy has raised for the
first time on appeal for plain error, which requires that he make
a four-part showing.

United States v. Olano, 507 U.S. 725, 732

(1993). There must be 1) error that 2) is "plain," meaning "clear"
or "obvious," id. at 733, that 3) was prejudicial, meaning that it
"affected the outcome of the district court proceedings," id. at
734, and 4) "seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings," with the fourth element within
the appellate court's discretion to require, id. at 736 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)) (internal
quotation marks omitted).

See also United States v. Kinsella, 622

F.3d 75, 83 (1st Cir. 2010).
We

review

Dancy's

preserved

testimony for abuse of discretion.
F.3d 73, 80 (1st Cir. 2009).

claim

as

to

Telford's

United States v. McElroy, 587
Any error is harmless if the

-14-

Case: 09-2628 Document: 00116196101 Page: 15

Date Filed: 04/13/2011

Entry ID: 5542037

government shows it is "highly probable that the error did not
influence the verdict." United States v. Flores-de-Jesús, 569 F.3d
8, 27 (1st Cir. 2009) (quoting United States v. Casas, 356 F.3d
104, 121 (1st Cir. 2004)) (internal quotation marks omitted).
Finally, we also review the denial of Dancy's motion for a mistrial
on the grounds of prosecutorial misconduct for abuse of discretion.
United States v. Gentles, 619 F.3d 75, 81 (1st Cir. 2010).

The

pertinent question is whether any prosecutorial misconduct "so
poisoned the well" that it likely affected the outcome of the
trial.

United States v. Azubike, 504 F.3d 30, 39 (1st Cir. 2007).
Even if we were to assume error as to each of these four

claims, none of the thresholds described above for reversal is met,
because it is highly unlikely that any error affected the verdict.
The evidence that Dancy knowingly possessed the .22 revolver Walls
felt in Dancy's pocket is very strong, as our recitation of the
facts shows.

That the gun fell to the ground when Dancy tried to

hand it off does not make his knowing possession any less, and
there is no support in the record for the theory the defense
presented at trial that the gun appeared on the floor from an
unknown source.

None of the evidence of knowing possession is

undermined even if we assume all of Dancy's claims have merit, as
they all involve rather peripheral issues.
Trooper Telford's testimony recounting portions of the
cell-block conversation between Dancy and Jones was admitted on a

-15-

Case: 09-2628 Document: 00116196101 Page: 16

theory of adoptive admission.
F.3d 48, 51 (1st Cir. 2007).

Date Filed: 04/13/2011

Entry ID: 5542037

See United States v. Miller, 478
The prosecution argues to us, as it

did to the district court, that the testimony was also admissible
on a theory that Jones's statements were reciprocal and integrated
utterances providing context for Dancy's statement.

See United

States v. Colón-Díaz, 521 F.3d 29, 38 (1st Cir. 2008).

At trial

only two of the three admitted statements were elicited before the
jury.

Telford testified to Jones's statement, "The Smith and

Wesson don't hold no prints," but not to his subsequent statement,
"Will, I'm getting charged with the big one and you're getting
charged with the little one . . . ."

Telford also testified to

hearing Dancy's statement in response, "I know, I feel you, and you
think it's my fault because I had to go and do that shit. . . ."
It is unclear why only these two portions of the conversation were
offered.
Dancy argues that Jones's statement, "The Smith & Wesson
don't hold no prints," was likely interpreted by the jury to refer
to the uncharged shooting offense and "suggested, improperly, some
consciousness of guilt on Dancy's part."

We cannot say it was an

abuse of discretion to admit Jones's statements, as they could be
interpreted as referring to the Boomer's encounter rather than to
the street shooting.

Because the comments were ambiguous, it is

also highly improbable that they had any influence on the jury's

-16-

Case: 09-2628 Document: 00116196101 Page: 17

Date Filed: 04/13/2011

evaluation of the evidence as to the charged offense.

Entry ID: 5542037

See Flores-

de-Jesús, 569 F.3d at 27.
Dancy's other claims of error are on matters even more
tangential.

The prosecutor's mistaken reference during closing

arguments to the second statement Telford overheard, which was
admitted

before

trial

but

not

elicited

isolated and apparently accidental.

before

the

jury,

was

See Gentles, 619 F.3d at 81.

Further, it was followed by strong curative instructions to the
jury stating not only that lawyers' arguments are not evidence, but
also that Telford's testimony had not included that statement. See
id. at 81-82.

Under these circumstances, it is not "likely that

any prejudice surviving the instruction could have affected the
outcome of the case."
Similarly,
admission

of

the

Id. at 82 (quoting Azubike, 504 F.3d at 39).
Dancy's

evidence

unpreserved

on

the

objections

uncharged

shooting

to

the

and

the

concededly irrelevant testimony on the state law definition of
"firearm," where the jury was clearly instructed on the federal
definition,

address

government's

case

issues

that

he

that

do

knowingly

nothing

to

possessed

undermine
a

firearm

the
as

federally defined. Any error did not affect the outcome of Dancy's
case.

Kinsella, 622 F.3d at 83.
Finally, we reject Dancy's fifth argument, presented for

the first time on appeal, that this court's interpretation of
language in the federal definition of "firearm" in 18 U.S.C.

-17-

Case: 09-2628 Document: 00116196101 Page: 18

Date Filed: 04/13/2011

Entry ID: 5542037

§ 921(a)(3) to include inoperable guns is unconstitutional under
District of Columbia v. Heller, 554 U.S. 570 (2008).

See 18 U.S.C.

§ 921(a)(3) ("The term 'firearm' means (A) any weapon . . . which
will or is designed to or may readily be converted to expel a
projectile by the action of an explosive . . . ."); United States
v. Ford, 548 F.3d 1, 7 (1st Cir. 2008) (holding that as long as the
gun is real, it need not be loaded or operable at the time to be a
firearm).

Nothing in Heller purports to narrow the scope of what

may be considered a firearm.

In any event, all that was necessary

to fire the .22 caliber gun was to replace the cylinder, which must
always be removed in order to load the gun with ammunition.

The

gun could be fired without the missing cylinder pin, either by
substituting a nail for the pin or by holding the cylinder in place
manually.
III. CHALLENGES TO THE SENTENCE
The court agreed with defense counsel that while Dancy,
from age seventeen, had a "bad record," the court had seen "really
bad records" comparatively, and Dancy's record was of picking "very
low hanging fruit." Indeed, the court noted that in most instances
Dancy had hurt himself, rather than others.

For that reason, the

court departed downward from the guideline range of 235 to 293
months,

concluding

that

"180

months

is

certainly

sufficient,

perhaps even more than sufficient, but it's the minimum sentence I
can impose."

-18-

Case: 09-2628 Document: 00116196101 Page: 19

Date Filed: 04/13/2011

Entry ID: 5542037

That minimum sentence resulted from the court's finding
that Dancy had committed at least three state offenses which
qualified as ACCA predicate offenses.

See 18 U.S.C. § 924(e)(1)

("[A] person who violates section 922(g) of this title and has
three previous convictions . . . for a violent felony or a serious
drug offense . . . shall be . . . imprisoned not less than fifteen
years . . . .").

Dancy concedes he has two qualifying predicate

drug offenses. The government concedes that one offense--a "guilty
filed" state outcome--does not qualify because it is not clear that
there was an actual conviction on the available facts.

The

question then boils down to whether Dancy's remaining Massachusetts
convictions for either ABPO or ABDW qualify under the force or the
residual clauses of the ACCA, described below.
A. Standard of Review
The ultimate question of law--whether a prior conviction
qualifies as a predicate offense under the ACCA--is reviewed de
novo.

United States v. Pakala, 568 F.3d 47, 54 (1st Cir. 2009).

However, there is a preliminary question of the standard of overall
appellate review, as Dancy did not argue until a late round of
supplemental briefing following our Holloway opinion that these
prior offenses were not ACCA predicates under the Supreme Court's
Begay and Johnson decisions.

Begay was decided before Dancy's

sentencing, and Johnson was decided after sentencing but months
before he filed his opening brief in this court.

-19-

The government

Case: 09-2628 Document: 00116196101 Page: 20

argues

that

Dancy's

claim

is

Date Filed: 04/13/2011

waived

or,

at

forfeited and reviewable only for plain error.

the

Entry ID: 5542037

very

least,

See Igartúa v.

United States, 626 F.3d 592, 603 (1st Cir. 2010) (explaining
consequences of waiver and forfeiture).
Given that before our opinion in Holloway Dancy could
understandably

have

assumed

that

our

precedents

holding

that

Massachusetts ABPO and ABDW convictions are ACCA predicates were
not subject to question, see United States v. Am, 564 F.3d 25 (1st
Cir. 2009) (ABDW); United States v. Fernandez, 121 F.3d 777 (1st
Cir. 1997) (ABPO), he has not waived (that is, knowingly given up)
his arguments. He has, however, forfeited them by not raising them
before the district court when he could have, and so we review the
district court's decision for plain error.

See Johnson v. United

States, 520 U.S. 461, 467-68 (1997) (plain error standard applies
where settled law changes between trial and appeal and issue was
not raised in district court); United States v. Barone, 114 F.3d
1284, 1294 (1st Cir. 1997) (same).
As we explain below, we conclude under the first part of
the plain error test that there was no error of law in the district
court's finding that Dancy's ABPO convictions qualified as ACCA
predicates.

This also means the outcome of this case would not be

different even if the issues had been raised before the sentencing
court.

-20-

Case: 09-2628 Document: 00116196101 Page: 21

Date Filed: 04/13/2011

Entry ID: 5542037

B. Legal Background under the ACCA
ACCA predicate offenses include certain drug offenses and
"violent felon[ies]," defined as:
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 involves conduct that
presents a serious potential risk of physical
injury to another.
18 U.S.C. § 924(e)(2)(B)(i) and (ii).

The Massachusetts ABPO and

ABDW crimes are punishable by terms of imprisonment of more than
one year, Mass. Gen. Laws ch. 265, § 13D (setting two-and-one-halfyear maximum term for assault and battery on a public employee,
which includes ABPO); § 15A(b) (setting ten-year maximum term for
ABDW).6

In the ACCA sentencing statute, "[c]lause (i) is sometimes

referred to as the 'force clause.'
following
clause.'"7

the

enumerated

offenses

The portion of clause (ii)
is

known

as

the

'residual

Holloway, 630 F.3d at 256 (citations omitted).
The inquiry under the ACCA is whether the state's legal

definition of the offense of conviction fulfills either clause of

6

The ACCA further provides that "any State offenses
classified by the laws of the State as a misdemeanor and punishable
by a term of imprisonment of two years or less" are not "crime[s]
punishable by imprisonment for a term exceeding one year."
18
U.S.C. § 921(a)(20). This limitation does not apply here.
7

Johnson was decided under the force clause, Johnson v.
United States, 130 S. Ct. 1265, 1268 (2010); Begay under the
residual clause, Begay v. United States, 553 U.S. 137, 140 (2008).
-21-

Case: 09-2628 Document: 00116196101 Page: 22

Date Filed: 04/13/2011

the ACCA's definition of a violent felony.

Entry ID: 5542037

We take a categorical

approach, meaning that we "consider only the offense's legal
definition" under state law, "forgoing any inquiry into how the
defendant may have committed the offense." Id.; see also Taylor v.
United States, 495 U.S. 575, 600 (1990). Under the Supreme Court's
decision in Shepard v. United States, 544 U.S. 13 (2005), if the
state statute encompasses multiple offenses, one or more of which
are not ACCA predicates, "a court may look to a restricted set of
documents (e.g., indictment, plea colloquy, jury instructions) to
ascertain which of the multiple offenses served as the offense of
conviction."8 Holloway, 630 F.3d at 256-57; see generally Nijhawan
v. Holder, 129 S. Ct. 2294, 2299 (2009) (explaining the categorical
approach).
Under Begay, to qualify under the ACCA residual clause,
the offense must both (1) pose a degree of risk that is similar to
the degree of risk posed by the enumerated offenses, and (2) be
roughly similar in kind to the enumerated crimes. United States v.
Almenas, 553 F.3d 27, 34 (1st Cir. 2009).
kind

if

it

"typically

aggressive conduct.

involve[s]"

An offense is similar in

purposeful,

Begay, 553 U.S. at 144-45.

8

violent,

and

The degree of risk

A plurality of the Court found that this was necessary to
prevent federal courts from finding disputed facts about the nature
of prior convictions, a practice that would raise questions under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United
States, 526 U.S. 227 (1999). See Shepard v. United States, 544
U.S. 13, 24-26 (2005) (plurality opinion).
-22-

Case: 09-2628 Document: 00116196101 Page: 23

Date Filed: 04/13/2011

and likeness inquiries are questions of federal law.

Entry ID: 5542037

See United

States v. Giggey, 551 F.3d 27, 39 (1st Cir. 2008) (en banc).
In 1997, before the

Supreme Court's decisions in Begay

and Johnson, we held that the Massachusetts crime of ABPO was
categorically a "crime of violence" under the residual clause of
the career offender Guideline.9

Fernandez, 121 F.3d at 780.

Our

precedents also hold that ABDW is categorically a violent felony.
See Am, 564 F.3d at 33 (holding ABDW is ACCA predicate under force

9

We have held that "the 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."
United States v.
Willings, 588 F.3d 56, 58 n.2 (1st Cir. 2009). In United States v.
Giggey, 551 F.3d 27, 36 (1st Cir. 2008) (en banc), we acknowledged
that the difference between the ACCA's enumeration of "burglary"
and the career offender Guideline's enumeration of the narrower
"burglary of a dwelling" affected the interpretation of the
Guideline's residual clause.
Dancy attempts to expand on Giggey, arguing that because
an application note to the Guideline expressly lists several
additional offenses, including "aggravated assault," as crimes of
violence, we cannot import into the ACCA context the analysis from
any case holding that a type of assault qualifies as a crime of
violence under the Guideline.
Our opinion in Fernandez did not rely on or even mention
the application notes. Nor is the ABPO crime an aggravated assault
under Massachusetts law. See Commonwealth v. Correia, 737 N.E.2d
1264, 1266 (Mass. App. Ct. 2000) (stating that assault and battery
(AB) on a public employee is a codification of the common law crime
of simple AB, with additional elements related to the employee's
status and engagement in performing official duties).
The
Massachusetts AB and ABDW statutes list separate simple and
aggravated offenses, though it is the courts and not the statutes
that supply the "aggravated" title. Compare Mass. Gen. Laws ch.
265, § 13A(a) (simple AB), with id. § 13A(b) (aggravated assault);
compare id. § 15A(b) (simple ABDW), with id. § 15A(c) (aggravated
ABDW); see also Commonwealth v. Assaf, No. 07-1337, 2009 WL
1616750, at *1 (Mass. App. Ct. June 11, 2009) (distinguishing
between statutes for simple and aggravated assault and battery).
-23-

Case: 09-2628 Document: 00116196101 Page: 24

Date Filed: 04/13/2011

Entry ID: 5542037

clause); United States v. Glover, 558 F.3d 71, 82 (1st Cir. 2009)
(holding

ABDW

is

crime

of

violence

under

career

offender

Guideline's residual clause). Dancy challenges the vitality of all
of these precedents.
C. Analysis under the ACCA
Underlying Dancy's arguments as to both state crimes are
several general propositions.

First, federal courts sentencing

under the ACCA must look to how state law defines the elements of
state crimes, including decisions by the state's highest court
interpreting statutory language and common law definitions.

See

Johnson, 130 S. Ct. 1269 (federal courts are bound by state high
courts' interpretations of state law, including state statutes).
Second, under Johnson, if that state law crime uses
alternative elements or definitions to criminalize more than one
type of conduct, so that it encompasses some conduct within the
ACCA and some not, and the defendant's conviction does not on its
face explain which type is involved, then the mere fact of the
defendant's conviction does not meet the government's burden of
showing that the conviction qualifies under the ACCA.

Holloway,

630 F.3d at 259.
Third, we held in Holloway that because Massachusetts law
allows a conviction for simple assault and battery (AB) on a
recklessness theory, without requiring purposeful or intentional
conduct, the mere fact of indictment and conviction for simple AB

-24-

Case: 09-2628 Document: 00116196101 Page: 25

Date Filed: 04/13/2011

Entry ID: 5542037

does not meet the government's burden to show that a defendant's
simple AB conviction qualifies under either the residual or the
force clause.10

Id. at 262.

This is because reckless simple AB

does not meet Begay's requirement that under the residual clause an
offense must "typically involve purposeful . . . conduct."

Begay,

553 U.S. at 144-45.
From

these

propositions,

Dancy

argues

that

no

Massachusetts state conviction for any crime involving AB can
qualify

under

the

ACCA

whether

on

only

those

the

crimes

face

the

conviction

involve

additional

regardless

of

elements.11

He argues that the key consideration is that all AB

crimes can be committed recklessly.

also

of

See, e.g., Commonwealth v.

Correia, 737 N.E.2d 1264, 1266 (Mass. App. Ct. 2000) (AB on a
public employee); Commonwealth v. Burno, 487 N.E.2d 1366, 1368-69
(Mass. 1986) (ABDW).

We disagree that this sole consideration is

dispositive of the ACCA question.
Holloway concerned only simple AB and not the two crimes
in question here.

Each of these two crimes includes additional

10

The Holloway court remanded to allow the government to
try to prove, using Shepard-approved documents, that the defendants
had been convicted of crimes that qualified under either the
residual clause or the force clause. United States v. Holloway,
630 F.3d 252, 263 (1st Cir. 2011).
11

The PSR in Dancy's case, which the parties use as a
conclusive record of his prior convictions for present purposes,
determined from state court records that Dancy was convicted of
ABPO stemming from two separate altercations, with no other
details.
-25-

Case: 09-2628 Document: 00116196101 Page: 26

Date Filed: 04/13/2011

Entry ID: 5542037

elements that distinguish this case from Holloway. It is necessary
for us to discuss and resolve only the ABPO issue.12
We turn to the elements of the ABPO crime, as specified
in the state statutes that criminalize ABPO and set forth standard
charging language, and as interpreted by the Massachusetts courts.
The charge was apparently brought pursuant to Mass. Gen. Laws ch.
265, § 13D, which provides: "Whoever commits an assault and battery
upon any public employee when such person is engaged in the
performance of his duties at the time of such assault and battery,
shall be punished . . . ."

This statute is separate and distinct

from the statute criminalizing simple AB. See Mass. Gen. Laws ch.
265, § 13A.

The standard statutory charging language for ABPO

charges is: "That A.B. did assault and beat C.D., who was a police
officer of the (city of Boston) (or whatever the fact may be), and
who was also in the lawful discharge of his duties as such officer,
as said (defendant) well knew . . . ."

Mass. Gen. Laws ch. 277,

§ 79.
Dancy is correct that a recklessness theory of liability
is available as to the action element of the state ABPO crime.
Commonwealth

v.

Zekirias,

819

N.E.2d

12

166,

168

(Mass.

2004)

The additional elements also distinguish this case from
those involving broad, general state statutes with recklessness
standards, such as reckless endangerment, see, e.g., United States
v. Lee, 612 F.3d 170, 197 (3d Cir. 2010), or involuntary
manslaughter, see, e.g., United States v. Woods, 576 F.3d 400, 410
(7th Cir. 2009).
-26-

Case: 09-2628 Document: 00116196101 Page: 27

Date Filed: 04/13/2011

Entry ID: 5542037

(describing jury instructions for "the offense of intentional or
reckless assault and battery on a public employee"); Correia, 737
N.E.2d at 1266 (holding that absent evidence that the legislature
intended the ABPO statute to have a different culpability standard
than the simple AB statute, recklessness was available).

But it

does not follow that any crime that can be committed recklessly
must necessarily not be similar in kind to any of the ACCA
enumerated offenses. Under state law the ABPO crime has additional
elements

that

the

simple

AB

crime

does

not:

(1)

the

person

assaulted must be a police officer, (2) the officer must be engaged
in his or her official duties, and also (3) the defendant must know
the victim of the assault and battery is a police officer engaged
in performance of his or her duties.
§ 79.

Mass. Gen. Laws ch. 277,

These additional elements differentiate the mental state

required for the ABPO crime from those required for simple AB.13
They ensure that the conduct criminalized by the ABPO statute is
"purposeful," which is different from the mental state required by
the elements of the simple AB statute.

13

In fact, the Massachusetts state courts have expressly
recognized that simple AB is a lesser included offense within ABPO,
appropriate where the jury finds all of the elements of simple AB
but does not find that the defendant knew the victim was a police
officer engaged in his or her official duties at the time of the
assault. Commonwealth v. Francis, 511 N.E.2d 38, 41-42 (Mass. App.
Ct. 1987); Commonwealth v. Rosario, 430 N.E.2d 866, 866 (Mass. App.
Ct. 1982).
-27-

Case: 09-2628 Document: 00116196101 Page: 28

Date Filed: 04/13/2011

Entry ID: 5542037

It is important that Begay specifically stated that the
enumerated offenses "typically" involve purposeful conduct, Begay,
553 U.S. at 144-45, and required only that an offense be "roughly
similar" in kind to the enumerated offenses in order to qualify
under the ACCA, id. at 143; see also Holloway, 630 F.3d at 261
(finding that reckless simple AB "does not typically involve
purposeful conduct"); Almenas, 553 F.3d at 35 n.9 (emphasizing
typicality

requirement).

This

means

we

should

not

allow

hypothetical fact patterns to control our decision if they are
unlikely to occur during the typical interactions which result in
ABPO convictions. Indeed, the Massachusetts Supreme Judicial Court
has itself cabined the meaning of "recklessness" in the ABPO
context, vacating a judgment of reckless ABPO where court officers
were merely "hit in the forearm" as defendant "was wildly gesturing
his arms" because it was not clear that the jury had found the
defendant reckless rather than merely negligent.
N.E.2d at 167.
"purposeful,"

Zekirias, 819

It is also true that the adjectives, such as
that

the

Supreme

Court

used

in

Begay

"denote

qualities that are ineluctably manifested in degree and appear in
different

combinations;

they

are,

therefore,

imprecise

aids."

United States v. Williams, 529 F.3d 1, 7 (1st Cir. 2008) (footnote
omitted).
The simple AB statute discussed in Holloway requires only
conduct "involv[ing] a high degree of likelihood that substantial

-28-

Case: 09-2628 Document: 00116196101 Page: 29

Date Filed: 04/13/2011

Entry ID: 5542037

harm will result to another," or involving "disregard of probable
harmful consequences to another."

Holloway, 630 F.3d at 261

(quoting Commonwealth v. Welch, 450 N.E.2d 1100, 1102-03 (Mass.
App. Ct. 1983)).

An AB conviction can arise from merely reckless

conduct involving great risk or disregard for consequences; no
additional statutory elements limit the factual circumstances in
which these requirements are met to situations that typically
involve purposeful conduct.14 The elements of the offense of simple
AB do not require any awareness of the victim, much less an
awareness that the victim is a law enforcement officer engaged in
the performance of official duties. See Welch, 450 N.E.2d at 110203 (listing elements of reckless simple AB).
By

contrast,

ABPO

arises

only

in

a

narrow

set

of

circumstances: an interaction between an individual and police
officers in which the individual knows that he or she confronts an
officer

and

that

the

officer

is

discharging

his

or

enforcement duties at the time of the confrontation.

her

law

This is

ensured by the additional elements that the police officer "was
. . . in the lawful discharge of his [or her] duties as such
officer, as said (defendant) well knew."

14

Mass. Gen. Laws ch. 277,

The recklessness theory of simple AB is limited to cases
in which the victim was actually injured, but this goes to the
effect of the defendant's actions, not to the defendant's mental
state. See Holloway, 630 F.3d at 261 (additional requirement under
recklessness theory is that "the victim suffered some physical
injury").
-29-

Case: 09-2628 Document: 00116196101 Page: 30

§ 79 (emphasis added).

Date Filed: 04/13/2011

Entry ID: 5542037

By requiring proof that the defendant knew

these facts as to the victim's status, the additional elements also
require the prosecution to prove the defendant knew that there were
one or more victims who could be injured by the defendant's
actions, and yet nonetheless acted with "disregard of probable
harmful consequences" or in a way that created "a high degree of
likelihood [of] substantial harm" to a potential victim.
Welch, 450 N.E.2d at 1102-03.

See

That the defendant must also know

the potential victim's specific status as a police officer engaged
in official duties only heightens the level of knowledge, and thus
purposeful conduct, that must be present before a defendant can be
convicted of ABPO.
As a result, in the ABPO context purposeful conduct is
the norm, and what we said in Fernandez is still true: the crime of
ABPO "nearly always involves the intentional striking of a police
officer."

Fernandez, 121 F.3d at 780.

"At a minimum, assault and

battery upon a police officer requires purposeful and unwelcomed
contact with a person the defendant knows to be a law enforcement
officer actually engaged in the performance of official duties."
Id.

The Massachusetts Appeals Court has recently ratified this

conclusion, noting that our statement in Fernandez that ABPO
requires purposeful conduct and knowledge as to the victim's
identity is different from "the concept that [the defendant]
intended

the

consequences

of

his

-30-

action."

Commonwealth

v.

Case: 09-2628 Document: 00116196101 Page: 31

Date Filed: 04/13/2011

Entry ID: 5542037

Deschaine, 932 N.E.2d 854, 861 (Mass. App. Ct. 2010) (citing
Fernandez, 121 F.3d at 778).
Turning to the risk component of the residual clause,
what we said in Fernandez about the degree of risk involved in ABPO
also remains true.

The ABPO crime "nearly always poses a serious

risk of actual or potential physical force and the likelihood of
physical injury.

That law enforcement officers usually carry

weapons when on duty only heightens the serious risk of injury
associated with such an assault."

Fernandez, 121 F.3d at 780.

While the primary risk of ABPO is to the officer who is
occupied with his or her duties to the public, there is also a
great risk to the defendant whose interference with the police is
likely to provoke a response of decisive force calibrated to end
the matter quickly and prevent the assailant from getting control
of the officer or his or her weapon or otherwise injuring the
officer or bystanders.

See United States v. Williams, 559 F.3d

1143, 1149 (10th Cir. 2009). "[T]he use of force is an expected,
necessary part of a law enforcement officer's task of subduing and
securing individuals suspected of committing crimes."

Lee v.

Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002). Police officers are
trained to "induce compliance" in people who "resist the officers'
efforts to bring [them] under control," and the techniques they may
legitimately use to do so may cause serious injury to the person
resisting.

Jennings v. Jones, 587 F.3d 430, 441 (1st Cir. 2009)

-31-

Case: 09-2628 Document: 00116196101 Page: 32

Date Filed: 04/13/2011

Entry ID: 5542037

(describing officer's use of "ankle turn control technique" taught
in police academy); see also Isom v. Town of Warren, 360 F.3d 7, 10
(1st Cir. 2004) (describing officers' use of pepper spray in
accordance with their training).

In addition to risk to the

officers and to the assailant, the confrontation between the
officer and the assailant may put bystanders at risk of injury as
well.
Indeed we think the serious risk of injury is greater in
the ABPO situation than in several of the enumerated offenses.

As

we have said of the Massachusetts crime of resisting arrest, the
crime involves "resisting the authority of a police officer, an
official charged with defending the public."
34.

Almenas, 553 F.3d at

Resisting arrest poses an arguably greater risk than the

enumerated

offenses

effectuate

the

because

arrest,"

the

resulting

officer
in

"a

is

"duty-bound

significant

risk

conflict and, concomitantly, a significant risk of injury."

to
of
Id.

The same is true for ABPO, which involves similar dynamics.
This great risk of physical injury is present even if the
assault and battery on the officer in the enforcement of his or her
duties is recklessly done.
categorical

analysis

even

And that risk is relevant to our
if

actual

materialize in a particular case.

physical

harm

does

not

Williams, 559 F.3d at 1149

("[B]attery of an armed on-duty police officer is 'a powder keg,
which may or may not explode into violence and result in physical

-32-

Case: 09-2628 Document: 00116196101 Page: 33

Date Filed: 04/13/2011

Entry ID: 5542037

injury to someone at any given time, but which always has the
serious potential to do so.'" (quoting United States v. West, 550
F.3d 952, 963 (10th Cir. 2008) (overruled on other grounds by
United States v. McConnell, 605 F.3d 822 (10th Cir. 2010))).

It is

enough that the typical case of ABPO involves a serious risk of
injury: the residual clause "speaks in terms of a 'potential
risk,'" an "inherently probabilistic concept[]."
States,
§

550

U.S.

924(e)(2)(B)(ii)).

192,

207

It

need

(2007)
not

be

James v. United

(quoting
the

case

18

U.S.C.

that

"every

conceivable factual offense covered by a statute must necessarily
present a serious potential risk of injury before the offense can
be deemed a violent felony."

Id. at 208.

Because the Massachusetts crime of ABPO qualifies under
the residual clause of the ACCA, we do not reach the question of
whether it qualifies under the force clause.
Because Dancy has four qualified ACCA predicate offenses,
we do not reach the question of whether a conviction for ABDW is
itself a predicate offense.
The conviction and sentence are affirmed.

-33-