US v. Taylor

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; David J. Barron, Appellate Judge and John J. McConnell , Jr.,* U.S. District Judge. Published. *Of the District Court of Rhode Island, sitting by designation. [15-1764]

Case: 15-1764

Document: 00117115837

Page: 1

Date Filed: 02/08/2017

Entry ID: 6068410

United States Court of Appeals
For the First Circuit
No. 15-1764
UNITED STATES OF AMERICA,
Appellee,
v.
KEYON A. TAYLOR, a/k/a Key, a/k/a Keyon Taylor,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]

Before
Thompson and Barron, Circuit Judges,
and McConnell, District Judge.*

Randall E. Kromm, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for Appellee.
Karen A. Pickett and Pickett Law Offices, P.C. on brief for
Appellant.

February 8, 2017

*

Of the
designation.

District

Court

of

Rhode

Island,

sitting

by

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THOMPSON, Circuit Judge.

Date Filed: 02/08/2017

Entry ID: 6068410

Keyon Taylor ("Taylor") shot

and beat a postal worker, and then hijacked his truck in a botched
robbery scheme. The ordeal finally came to an end when the worker
popped the truck's rear gate and jumped out of the moving vehicle
to try and save his own skin. Taylor was convicted of multiple
federal crimes arising from this episode, then sentenced to just
shy of thirty years in prison. Taylor now appeals. We affirm on
all points but one:

Taylor's Guidelines sentencing range was

incorrectly calculated, and so we remand for the limited purpose
of

permitting

the

trial

court

judge

to

reconsider

Taylor's

sentence.
The Facts
Taylor raises many challenges to his conviction and
sentence on appeal, but the sufficiency of the evidence is not one
of them. So, we give a balanced presentation of those facts
necessary to understand the parameters of this appeal and our
disposal of it. See United States v. Burgos-Montes, 786 F.3d 92,
99 (1st Cir. 2015), cert. denied, 136 S. Ct. 599 (2015).1 The
details of the crime and the police investigation are important to

1

This issue--how we relate the facts where the appellant does
not challenge the sufficiency of the evidence to support the
conviction--is unsettled in this circuit. Id. at 99 n.1; United
States v. Rodríguez-Soler, 773 F.3d 289, 290 (1st Cir. 2014), cert.
denied, 135 S. Ct. 1189 (2015). In this case the standard we apply
has no effect on the outcome of Taylor's appeal, so we simply note
the issue and move on.

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our analysis of Taylor's claims on appeal, so bear with us as we
spell them out.
On December 20, 2013, around 6:00 pm, a United States
Postal Service letter carrier named Fai Wu was out delivering
packages in Dorchester, Massachusetts. As he walked back to his
truck, Wu noticed a white van parked behind his vehicle but paid
it no mind. He reentered his truck, and while buckling his seatbelt
and preparing to move along for the next delivery, he heard a man
say "Give me your wallet." Wu turned to his right, and inside his
truck was a masked man wearing a dark colored jacket aiming a
revolver straight at his head. Obviously assuming an armed robbery
was in progress, Wu got up to hand over his wallet. But, concerned
for his safety, he also tried to move the revolver away from his
scalp. In the entanglement, the man shot Wu in the wrist and then
demanded that Wu disclose the location of the "cash drawer." Postal
trucks do not have cash drawers. When Wu explained this reality,
the man clocked Wu in the head ten to twenty times with the butt
of his gun, then repeated the question:

"Where's the drawer?"

When Wu could not deliver the sought-after prize, the attacker
ordered Wu into the back of the truck and again asked for the cash
drawer. When Wu still could not deliver, the assailant attacked Wu
by repeatedly kicking him.
Eventually the armed attacker ordered Wu to strip off
his uniform, to hand over his truck keys, and not to look at him.

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The assailant then took the uniform and mopped up some of Wu's
blood from the front of the truck before driving it away with Wu
still in the back. Wu seized his opportunity to escape when the
attacker slowed down to turn a corner:

clad only in a sweatshirt,

long underwear, and socks, Wu popped the tailgate, jumped off the
back of the truck, and hightailed it down the street. As he ran,
yelling for help, a still-bleeding Wu spotted the same white van
he had previously observed and inadvertently brushed up against
it. Wu kept going until he came across a group of pedestrians who
called 911.
According to witnesses, the attacker crashed the truck
into a snow bank and fled the scene, leaving a visible trail of
boot prints and blood behind. Investigators later followed that
trail and found, amongst other crime-related items, blood on two
chain-link fences; scraps of purple nitrile gloves, including one
piece that was stuck to a fence in the blood; and a blood-smeared
backyard recycling bin containing Wu's uniform.
After learning of the attack, postal inspectors and
police

canvassed

the

area

looking

for

more

clues.

Witnesses

reported that a white U-Haul van was behind the mail truck before
and after Wu was attacked. Investigators discovered that a corner
market near the crime scene caught the white van on camera:

the

market's surveillance footage showed the mail truck driving down
the block at 5:57 pm, and as soon as the mail truck passed by, a

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white U-Haul van turned its headlights on and followed the mail
truck around the corner and through a red light.
Later in the evening, when postal inspectors were still
out pursuing their investigation, they spotted a white cargo UHaul van fitting witnesses' descriptions a short distance from the
kidnapping scene. They followed it to a gas station and within
moments noticed two blood smudges on the outside of the van and a
purple nitrile glove in a cup holder. The inspectors learned
Maurice Gittens was the driver and Kemron Roache the passenger.
When asked what he was doing with the van, Gittens told the postal
inspectors he was living in it (though the rear compartment was
nearly empty). Both men were transported to the police station for
questioning. While there, Gittens told the police, in pertinent
part, the following:

the purple glove was not his, but was left

in his car by a man named Kurt (whose last name and whereabouts
Gittens did not know); yes, he was driving the van that day; at
one point he was behind a postal truck and saw a man run from the
truck (in the opposite direction of the attacker's flight path);
though not positive, he said he picked up Roache around 6:00 pm
(shortly before the crime, but two hours before 8:00 pm, the time
Roache later claimed Gittens contacted him); and he and Roache
drove around together that evening and smoked some marijuana in
the park (an alibi).

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With his consent, police searched Gittens' phone and
found

he

had

called

"Cam,"--later

determined

to

be

Roache's

nickname--around 6:12 pm that night, and that a few minutes later
Cam texted "Ima hit you wen to come threw." At 6:31 pm, Cam texted
"Where key at." After obtaining a warrant, police searched the van
and found several items, including more purple nitrile gloves, an
ID card belonging to Sabrina Ramsey--a woman later determined to
be Taylor's girlfriend--and a U-Haul rental agreement in the name
of

"Maurice

Williams"

but

bearing

Ramsey's

address.

When

questioned, Ramsey told police that she was with Taylor and Gittens
in the white van until 5:00 or 5:30 pm that day, Taylor did not
return to her place until 8:00 or 9:00 pm, and Gittens showed up
around 4:00 am (after he was questioned) looking for Taylor.
So the police started looking for Taylor, too. In their
investigation,

they

discovered

that

the

then-twenty-year-old

suspect worked in an office where purple nitrile gloves were used.
They also obtained surveillance footage from the U-Haul rental
center showing that Taylor and Gittens rented the white van the
day before the attack on Wu. Several days later the police went to
Taylor's

mother's

house,

where

they

found

Taylor

and

other

evidence, including a black jacket with a stained sleeve.
DNA testing performed on several seized items showed a
lot. Both Taylor and Wu's DNA were found on the black jacket. Wu's
uniform retrieved from the recycling bin carried both Wu and

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Taylor's blood. The blood on the flight path fences and the
recycling bin belonged to Taylor. And, the blood on the outside of
the white van belonged to Wu.
Court Proceedings
Taylor and Gittens were indicted for (1) conspiracy to
rob a postal worker under 18 U.S.C. § 371, (2) assault on a federal
employee under 18 U.S.C. §§ 111(a)(1) and (b), (3) robbery and
attempted robbery under 18 U.S.C. § 2114(a), (4) kidnapping under
18 U.S.C. § 1201(a)(5), (5) attempted kidnapping under 18 U.S.C.
§ 1201(d), and (6) the use of a firearm in connection with a crime
of violence--specifically robbery, attempted robbery, kidnapping,
and attempted kidnapping--under 18 U.S.C. § 924(c). Gittens pled
guilty before trial to counts 1, 3, and 6, and he was eventually
sentenced to ten years' imprisonment.
Taylor opted for trial, wherein he essentially presented
a misidentification defense based on how the crime unfolded.

As

a result of Wu's assailant wearing a mask during the assault and
kidnapping, Wu was unable to identify his attacker. Pivoting off
this identity problem and trying to sow seeds of reasonable doubt
by labeling any evidence of his culpability inconclusive, Taylor
argued

that

Roache

better

matched

Wu's

description

of

the

assailant's height and build. And, that fact, coupled with the
presence of Roache's fingerprints on the door of the white van and
the recovery of Wu's wallet in a neighborhood near Roache's house,

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meant Roache had to be the person who robbed and shot Wu. To
further support his him-not-me theory, Taylor wanted to use the
following evidence:
during

discovery

(1) a letter from the government produced
identifying

Roache

as

an

unindicted

co-

conspirator (we call this "the Roache Letter"), and (2) Gittens'
statement that he picked up Roache around 6:00 pm that day (we
call this "the Gittens Statement"). The trial court ruled both
inadmissible.
Sticking with a misidentification defense during his
closing argument (which we will address momentarily), Taylor's
lawyer gave the jury an alternative explanation of the evidence
which described in detail how Roache was more probably the culprit.
In response to the defense's closing, the prosecutor's rebuttal
harped on why evidence did not support Taylor's Roache-blaming
theory.

He

also

emphasized

that

statements

made

by

Taylor's

attorney are not evidence. In the end the jury didn't buy Taylor's
defense and convicted him on all counts.
Taylor's Presentence Investigation Report recommended a
Guidelines sentencing range of 360 months (30 years) to life in
prison, plus a mandatory consecutive ten-year term for Taylor's
conviction

on

count

six,

using

a

firearm

during

a

crime

of

violence. Objecting to the report in a presentencing filing and
again during his sentencing hearing, Taylor claimed the Guidelines
range was wrong for two reasons:

his prior conviction for larceny

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from a person is not a crime of violence, and his criminal history
score exaggerated the seriousness of his past crimes, most of which
he committed as a teenager. The judge rejected Taylor's first
argument but agreed with the second and sentenced Taylor to 235
months, plus ten years.
This appeal followed.
Taylor's Arguments
Taylor raises challenges to several trial happenings:
(1) the trial court judge's exclusion of the Roache Letter and the
Gittens Statement; (2) the prosecutor's closing argument, which
Taylor claims was an improper comment on his failure to testify or
present exculpatory evidence; (3) his conviction on count six, for
using a firearm during a crime of violence, because he believes
the predicate crimes are not crimes of violence under § 924(c);
and (4) the procedural reasonableness of his sentence. We address
each point in turn.
The Evidence
Taylor objected to the exclusion of the Roache Letter
and the Gittens Statement at trial, so we review both of these
evidentiary rulings for abuse of discretion. See Burgos-Montes,
786 F.3d at 114. "Abuse of discretion occurs 'when a relevant
factor deserving of significant weight is overlooked, or when an
improper factor is accorded significant weight, or when the court
considers the appropriate mix of factors, but commits a palpable

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error of judgment in calibrating the decisional scales.'" United
States v. Jiménez, 419 F.3d 34, 43 (1st Cir. 2005) (quoting United
States v. Gilbert, 229 F.3d 15, 21 (1st Cir. 2000)).
If the trial court abuses its discretion, the burden
falls to the government to show the error was harmless. BurgosMontes, 786 F.3d at 114 (citing United States v. Meserve, 271 F.3d
314, 329 (1st Cir. 2001)). An error is harmless if it "does not
affect [a] substantial right[]," Fed. R. Crim. P. 52(a), meaning
it is "highly probable that the error did not contribute to the
verdict," United States v. Rose, 104 F.3d 1408, 1414 (1st Cir.
1997).
The Roache Letter
Taylor argues that the trial court abused its discretion
in excluding the Roache Letter, a letter Taylor urges is admissible
as a non-hearsay admission by the prosecution that Roache was a
co-conspirator.

See

Fed.

R.

Evid.

801(d)(2)

(party-opponent

admissions are not hearsay). Taylor's theory goes like this:


Roache did it, or at the very least, the evidence
did not prove the perpetrator's identity beyond
a reasonable doubt,



the government's admission that Roache was a coconspirator bolstered Taylor's defense that
Roache was involved,



so, the evidence was relevant and should have
been admitted.

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Stating that even if she assumed the Letter could have been
admitted under Rule 801(d)(2), the trial court judge barred it
nonetheless citing Federal Rule of Evidence 403, which allows the
exclusion of otherwise-relevant and admissible evidence if its
probative value is "substantially outweighed" by the risk of
"confusing the issues" or "misleading the jury." The trial court
found that admitting the Letter could lead to "a mini-trial about
a side issue"--to wit, why Roache was unindicted--so the risk of
confusing

the

issues

substantially

outweighed

the

Letter's

probative value. See United States v. George, 761 F.3d 42, 57 (1st
Cir. 2014).
Our take:

Assuming the Letter was admissible under Rule

801(d)(2) (we do not say that it was), and assuming the trial court
judge erred in excluding it under Rule 403 (and we do not say that
she did), the error was harmless. The Letter would have done little
to help Taylor's defense. At most, it shows that the government
believed Roache may have been involved. But the jury already knew
that: the postal inspectors testified that they apprehended Roache
with Gittens in the white van on the night of the crime, arrested
and questioned them both, and found texts and calls to and from
"Cam" (Roache's nickname, remember) on Gittens' cellphone.
The Letter's exclusion also did not stop Taylor from
pressing

his

him-not-me

theory.

On

cross-examination

of

the

government's witnesses, Taylor drew out the fact that Roache better

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matched the suspect's description, and that police did not test
the seized evidence for Roache's DNA. Taylor called his own
witnesses to testify that Wu's wallet was recovered near Roache's
house, and that Roache's fingerprints were found on the van. Taylor
then used his closing argument to try and tie Roache rather than
himself to all of the prosecution's other evidence of the crime.
For instance, Taylor argued that his DNA ended up along the
attacker's flight path and on Wu's uniform because he met up with
Roache by the recycling bin after Roache attacked Wu.
The prosecution's evidence, on the other hand, strongly
pointed to Taylor. Taylor and Gittens were caught on camera renting
the white cargo van together. Taylor worked in an office building
that used purple nitrile gloves like the ones found stuck to the
fence and in the van. When Wu's attacker fled the scene of the
crime,

he

left

a

trail

of

blood

leading

to

a

blood-smeared

recycling bin where the attacker dumped Wu's uniform mid-flight.
The blood found on the flight path, the bin, and the uniform was
Keyon Taylor's. Postal inspectors found a black jacket like the
one worn by Wu's attacker in Taylor's mother's closet. That jacket
contained Taylor's DNA and was stained with Wu's blood. Given the
abundance of evidence inculpating Taylor, the government has shown
it is "highly probable" that the exclusion of the Roache Letter

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did not contribute to the verdict. See Rose, 104 F.3d at 1414. Any
error in excluding the Letter was harmless.2 Id.
The Gittens Statement
Taylor also claims the trial court abused its discretion
in excluding Gittens' statement that he picked up Roache at 6:00
pm (remember, the attack went down around that time). Here's how
the issue of the Gittens Statement arose: at trial the prosecution
was allowed to admit Gittens' statement to police that he was
living in the van as evidence that Gittens lied about why he rented
the van. So, Taylor argued that this opened the door for him to
introduce another statement Gittens made to police that night-his statement that he picked up Roache at 6:00 pm--as a statement
against interest under Federal Rule of Evidence 804(b)(3) or under
the doctrine of verbal completeness. Neither argument persuades.
1. The 804(b)(3) Claim
Under

Rule

804(b)(3),

a

hearsay

statement

against

interest may be admissible if it (a) was self-inculpatory when
made because it would "expose the declarant to . . . criminal
liability,"
circumstances

and
that

(b)

it

clearly

"is

supported

indicate

2

its

by

corroborating

trustworthiness."

A

In a solitary sentence, Taylor asserts that this exclusion
prejudiced his Sixth Amendment right to present an adequate
defense. Because the argument is undeveloped, it is waived. United
States v. Oladosu, 744 F.3d 36, 39 (1st Cir. 2014), cert. denied,
135 S. Ct. 97 (2014).

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statement

is

"sufficiently

Page: 14

self-inculpatory
against

the

under

Date Filed: 02/08/2017

Rule

declarant's

804(b)(3)

penal

Entry ID: 6068410

if

interest

it

is

'that

a

reasonable person in the declarant's position would not have made
the statement unless believing it to be true.'" United States v.
Barone, 114 F.3d 1284, 1295 (1st Cir. 1997) (quoting Williamson v.
United States, 512 U.S. 594, 603-04 (1994)). The trial court found
the Gittens Statement failed both prongs of the Rule 804(b)(3)
analysis, and Taylor takes issue.
For our part, we need not decide today whether the
Gittens Statement satisfied the self-inculpatory prong of the
804(b)(3) rule since we conclude that the trial court judge did
not abuse her discretion in finding the Statement insufficiently
corroborated to be deemed trustworthy, and thus inadmissible.
Taylor attacks the trial court's ruling based upon what he says is
independent evidence supporting the pick-up-at-6:00 pm Statement's
truth. And, noting that the corroboration requirement is not
"unrealistically severe," United States v. Mackey, 117 F.3d 24, 29
(1st Cir. 1997), Taylor's corroboration argument goes like this:
(a) the government's evidence showed that the van was parked behind
Wu's truck during the assault; (b) Gittens says he picked up Roache
just before the assault took place; (c) as such, his statement
puts Roache (not Taylor) with Gittens at the scene; (d) to boot,
the Roache letter demonstrated the government's belief that Roache
was involved; and (e) therefore (a) through (d) sufficiently

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corroborated the Gittens Statement. We decline to accept Taylor's
argument.
The second prong of the Rule 804(b)(3) test requires
"meaningful corroboration" of the hearsay testimony. United States
v. Monserrate-Valentín, 729 F.3d 31, 52 (1st Cir. 2013) (quoting
United States v. Bradshaw, 281 F.3d 278, 286 (1st Cir. 2002)). To
establish "meaningful corroboration," "[i]t is not necessary that
the corroboration consist of 'independent evidence supporting the
truth of the matter asserted by the hearsay statements.'" United
States v. Pelletier, 666 F.3d 1, 8 (1st Cir. 2011) (quoting Barone,
114 F.3d at 1300). But, there must be "evidence that clearly
indicates that the statements were worthy of belief, based upon
the circumstances in which the statements were made." Id. (citation
and

quotation

inquiry

is

marks

concerned

omitted).
only

with

"[T]he

804(b)(3)

corroboration

the

admissibility

of

hearsay

evidence based upon its trustworthiness, a determination committed
to the sound discretion of the district court." Id. at 9 (quoting
Barone, 114 F.3d at 1301).
As

we

have

explained,

"[t]he

fear

that

inculpatory

statements are unreliable stems largely from the presumption that
such statements are self-serving, offered only to shift the blame
from the declarant to another," thus we construe the corroboration
requirement "in such a manner as to effectuate its purpose of
circumventing

[such]

fabrication."

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Barone,

114

F.3d

at

1301

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(citations omitted); see Williamson, 512 U.S. at 601-02. So a
statement may be corroborated by the circumstances in which the
statement was made if it is "directly against the declarant's penal
interest," made to a close associate or family member, or there is
no indication that the speaker had motive to lie. Barone, 114 F.3d
at

1301;

see,

(corroborating
cousins

and

e.g.,

Monserrate-Valentín,

circumstances
undercover

found

agent);

where

729

F.3d

statements

Pelletier,

666

F.3d

at

53-55

made

to

at

8-9

(statements made to fellow inmate). On the other hand, statements
made to law enforcement officers, or in an apparent attempt by the
speaker to shift blame or otherwise "diminish his role in the
criminal

activity

described

in

the

statements,"

may

not

necessarily be corroborated by the circumstances. Barone, 114 F.3d
at 1301.
The Gittens Statement was made to police. And, as the
government argued below, the Statement was made after Gittens was
apprehended with Roache and the van on the night of the crime in
an apparent attempt to establish an alibi for the time of the
attack on Wu and to explain away the presence of the purple nitrile
gloves in the van. These circumstances indicate that Gittens had
motive to lie and was angling to diminish his role in the events
of the evening--in other words, these are the type of circumstances
that fail to corroborate.

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Taylor does not now address the circumstances in which
the Gittens Statement was made. Instead, as previously noted, he
points to "independent evidence" that he claims supports "the truth
of the matter asserted by the hearsay statements." See Pelletier,
666 F.3d at 8 (quoting Barone, 114 F.3d at 1300). But the problem
with his argument is that this type of corroboration requires
"indicia

of

trustworthiness

of

the

specific,

'essential'

assertions, not merely of other facts contained in the statement."
Mackey, 117 F.3d at 29 (quoting United States v. Zirpolo, 704 F.2d
23, 27 n.4 (1st Cir. 1983)); see, e.g., United States v. Millan,
230 F.3d 431, 437 (1st Cir. 2000). The essential assertion here,
and the relevant fact that Taylor wanted to use the Statement to
prove, is that Gittens picked up Roache around the time of the
crime. Neither the fact that surveillance video showed the white
van behind Wu's mail truck, nor the fact that the government said
Roache

was

an

unindicted

co-conspirator,

corroborates

the

assertion that Gittens, in fact, picked up Roache or that the two
of them were together at 6:00 pm.3 Indeed, as the government points

3

Taylor argues for the first time in his reply brief that
text messages between Roache and Gittens corroborate the Gittens
Statement. At oral argument the government pointed out that if
anything, the messages undermine the Gittens Statement because
they indicate Roache and Gittens were not together at the time of
the crime. But, Taylor does not cite to the record to support this
point, he apparently did not raise it to the district court, and
he did not mention it in his opening brief, so the point is waived.
United States v. McNicol, 829 F.3d 77, 83 (1st Cir. 2016); Sparkle
Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29 (1st Cir.
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out, other evidence directly contradicts the essential assertion
of the Gittens Statement:

Roache said Gittens did not contact him

that night until 8:00 pm.
2. The Doctrine of Completeness Claim
In addition to his 804(b)(3) argument, Taylor contends
that because the government was allowed to introduce a part of
Gittens' conversation with police--the apparent lie that he was
living in the van--Taylor should have been allowed to introduce
other

parts

completeness,

of

Gittens'

which

conversation

"operates

to

under

ensure

the

doctrine

fairness

where

of
a

misunderstanding or distortion created by the other party can only
be averted by the introduction of the full text of the out-ofcourt statement." United States v. Simonelli, 237 F.3d 19, 28 (1st
Cir. 2001) (quoting United States v. Awon, 135 F.3d 96, 101 (1st
Cir. 1998)). But Taylor does not explain what "misunderstanding or
distortion" was created by the trial court's admission of Gittens'
claim that he was living in the van. Nor does Taylor explain how
admitting the Gittens Statement would correct that distortion.
Excluding the Gittens Statement under this doctrine was not an
abuse of discretion.

2015). His argument that the Gittens Statement should have been
admissible under Rule 806 to somehow impeach Gittens' claim that
he was living in the van is also waived because it was not preserved
below.

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These

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evidentiary

Date Filed: 02/08/2017

disputes

resolved,

we

Entry ID: 6068410

move

on

to

Taylor's next claim of error.
The Closing Arguments
Taylor argues his conviction should be reversed because
the

prosecutor's

closing

arguments

were

prejudicial.

In

his

rebuttal argument, the prosecutor repeatedly stated that defense
counsel cannot testify, or that defense counsel was in fact
testifying, and that the evidence in the record did not support
Taylor's lawyer's theories. This approach, according to Taylor,
was

an

improper

attack

on

defense

counsel

that

amounted

to

commenting on Taylor's right not to testify and not to produce
evidence.
Because

Taylor

did

not

object

to

the

prosecutor's

statements at trial, we review for plain error. See United States
v. Wilkerson, 411 F.3d 1, 7 (1st Cir. 2005). This means we review
to determine whether "an error occurred which was clear or obvious
and which not only affected the defendant's substantial rights but
also

seriously

impaired

the

fairness,

integrity,

or

public

reputation of judicial proceedings." Id.
A prosecutor may not comment on the defendant's failure
to testify in his own defense, nor may a prosecutor imply that the
defendant has the burden to produce exculpatory evidence. United
States v. Glover, 558 F.3d 71, 77 (1st Cir. 2009). "A prosecutor's
remarks violate a defendant's Fifth Amendment guarantee against

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self-incrimination if 'in the circumstances of the particular
case, the language used was manifestly intended or was of such a
character that the jury would naturally and necessarily take it to
be a comment on the failure of the accused to testify.'" Wilkerson,
411 F.3d at 8–9 (quoting United States v. Wihbey, 75 F.3d 761, 769
(1st Cir. 1996)); see United States v. Hardy, 37 F.3d 753, 757-58
(1st Cir. 1994) (finding "necessary implication" of remark that
defendants were running and hiding was that defendants were "hiding
behind their right to silence during trial"); Desmond v. United
States, 345 F.2d 225, 227 (1st Cir. 1965) (argument that witness
was "unimpeached and uncontradicted," where only the defendant
could have impeached or contradicted the witness, was a comment on
defendant's failure to testify).
But, where the defendant offers an alternate theory of
the crime in his own defense, the government may comment on the
plausibility of the defendant's theory, provided the comments are
focused on the record evidence and not the defendant's failure to
produce any. Glover, 558 F.3d at 78. Indeed, "the prosecution may
comment on the lack of evidence for a defense theory." United
States v. Lyons, 740 F.3d 702, 730 (1st Cir. 2014) (finding no
Fifth Amendment violation where prosecutor noted there was "no
evidence at all" to support defense theory), cert. denied, 134 S.
Ct. 2743 (2014); accord United States v. Niemi, 579 F.3d 123, 128–
29 (1st Cir. 2009) (no error where prosecutor posited that defense

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counsel could not offer alternate explanation for use of code words
in recorded conversation); United States v. Sánchez-Berríos, 424
F.3d 65, 73 (1st Cir. 2005) ("The prosecutor's description of the
defense as a 'self serving absurdity,' while not flattering, was
fair argument" (citation omitted)); United States v. Bennett, 75
F.3d 40, 46–47 (1st Cir. 1996) (no error in calling defense theory
a "diversion" that "doesn't pass the laugh test").
Upon review of the statements, we cannot find Taylor's
view--that the prosecutor was commenting on Taylor's failure to
testify or produce evidence--is the only, or even a natural reading
of the prosecutor's statements. Taylor used his closing argument
to illustrate how Roache's involvement could explain the evidence
that incriminated Taylor. And, the prosecutor commented on the
plausibility of each explanation. For example, Taylor's lawyer
said that the assailant's bloody clothes materialized in Taylor's
mother's closet in Attleboro not because Taylor put them there,
but because Gittens picked up Roache after Roache attacked and
kidnapped Wu, then Gittens and Roache put the clothes in the
closet. The prosecutor rebutted:
He's told you that Maurice Gittens picked up
Roache, . . . [and] went down to Attleboro. He told
you that they put clothes there, clothes that
[were] used in the shooting. Did you hear any
evidence of that? None. He[, Taylor's attorney,]
can't testify, ladies and gentlemen. He's not a
witness.

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In context, the prosecutor's arguments do not point to Taylor's
failure to testify or present evidence; he is simply drawing the
jury's attention to "the balance of evidence on the contested
issues." Niemi, 579 F.3d at 128–29 (quoting United States v.
Stroman, 500 F.3d 61, 65 (1st Cir. 2007)).
The

only

instance

that

comes

close

to

implicating

Taylor's Fifth Amendment rights came in rebuttal to Taylor's
explanation of how his DNA ended up along the attacker's flight
path and on Wu's uniform. At trial the prosecutor introduced a
surveillance video recorded by a nearby business that showed the
white van had parked on Wu's route, then pulled out to follow the
mail truck after Wu drove by. Pointing to a person walking down
the street in that surveillance video who happened to be wearing
a jacket similar to one Taylor owned, Taylor's attorney argued the
jacket-wearer was Taylor, that Taylor walked away from the van
before the crime occurred because he wanted nothing to do with it,
but he met up with Roache by the recycling bin after the crime. In
rebuttal, the prosecutor argued:
So somebody crosses the intersection, they got a
stripe on the jacket and automatically it must be
Keyon Taylor. And he makes this leap. He says that
Keyon Taylor is the person who walked down Clermont
Street, this incredible leap, incredible leap . .
. There is absolutely no evidence of that, ladies
and gentlemen. He[, Taylor's lawyer,] cannot
testify. Now, he says that the defendant was there.
Really? Really. Did you hear any evidence to that
point? He can't testify. He says the defendant

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wanted nothing to do with this. He leaves the van,
he walks calmly down the street . . . Really? What
evidence of there is that. And he says, Well, you
know, maybe he met up with Kemron Roache, maybe he
took these articles, maybe it was a dumb decision.
What evidence is there of that, ladies and
gentlemen?
Arguably this comes closer to implicating Taylor's Fifth Amendment
rights than the first example we described above because the
alternative

explanation

of

Taylor's

whereabouts

that

night

included a time when he was acting alone, and only he could vouch
for what he was up to in that moment. A prosecutor's comments about
a gap in the evidence can violate a defendant's Fifth Amendment
rights if, under the circumstances, it is obvious that only the
defendant could have filled the gap. For instance, in Desmond, 345
F.2d

at

227,

the

prosecutor

violated

the

defendant's

Fifth

Amendment right not to testify with a comment that a witness's
testimony

was

"unimpeached

and

uncontradicted":

the

witness

testified that he was alone with the defendant, so it was obvious
from the circumstances that the defendant was the only person who
could have possibly contradicted or impeached the witness, thus
the prosecutor's comment could only be understood as a comment on
the defendant's silence.
But

Taylor

does

not

contend

that

the

prosecutor's

remarks resemble those in Desmond. Perhaps that is so because it
is "apparent on the record that there was someone other than
himself

whom

the

defendant

could
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have

called"

to

fill

the

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evidentiary gap. United States v. Ayewoh, 627 F.3d 914, 925 (1st
Cir. 2010) (citations and internal quotation marks omitted). Here,
that person is Roache.4 In any case, considered in context, the
prosecutor's argument is not a comment on Taylor's failure to
testify to explain his movements, or his failure to present
exculpatory evidence. The prosecutor is, once again, commenting on
the balance of the evidence, and the fact that none of it supports
Taylor's theory. These comments are fair game.
Taylor's
improperly

impugned

argument
"the

that

the

integrity

prosecutor's

or

institutional

remarks
role

of

defense counsel," Bennett, 75 F.3d at 46, fails for the same
reasons.

Taken

in

context,

the

prosecutor's

statements

that

defense counsel cannot testify do not amount to an attack on

4

The fact that Roache might not testify to these facts if
called to the stand--either because the events did not transpire
as claimed by Taylor's lawyer or because Roache might claim his
own Fifth Amendment privilege--is immaterial here. At issue is
whether the jury would "naturally and necessarily" take the
prosecutor's argument as a comment on Taylor's failure to testify.
Wilkerson, 411 F.3d at 8–9. If the jury would believe from the
circumstances that someone else could testify to the facts at
issue, the comments usually will not "naturally and necessarily"
point to the defendant's silence. Indeed, we have found that
similar comments do not cross the Fifth Amendment line even where
no such other person exists. See United States v. Glantz, 810 F.2d
316, 323 (1st Cir. 1987) (finding no error in prosecutor's remark
about absence of records, rejecting defendant's argument that
comment violated his Fifth Amendment rights because he was the
only person who could produce and authenticate records at issue,
because "the existence of other 'recordkeeping' witnesses [on
other issues at trial] ma[de] it unlikely that the jury would have
viewed the challenged comments as pointing to defendants'
silence").

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Taylor's attorney. The comments simply state the incontrovertible
truth--Taylor's attorney's statements are not evidence--a fact
that was also included in the jury instructions, where it drew no
objection from Taylor.
Plain error is a high bar to clear. Here there was no
error, so Taylor's argument falls flat.
The ACCA Conviction
Taylor raises a slew of challenges to his conviction
under 18 U.S.C. § 924(c) of the Armed Career Criminal Act ("ACCA"),
which added ten years to his sentence for discharging a firearm
during a "crime of violence." Because Taylor did not raise his
ACCA challenges before the district court, we review for plain
error. See United States v. Reed, 830 F.3d 1, 6 (1st Cir. 2016).
The issue underlying Taylor's 924(c) claims is what
makes a particular crime a "crime of violence." Under § 924(c)(3),
"the term 'crime of violence' means" a felony that
(A) has as an element the use, attempted use, or
threatened use of physical force against the person
or property of another, or
(B) that by its nature, involves a substantial risk
that physical force against the person or property
of another may be used in the course of committing
the offense.
18 U.S.C. § 924(c)(3). Part (a) is commonly called the "force"
clause, and part (b) is known as the "residual" clause. See United
States v. Booker, 644 F.3d 12, 20 (1st Cir. 2011) (discussing §

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924(e)). A similar, but not identical, residual clause in §
924(e)(2)(B) was recently found unconstitutionally vague. Johnson
v. United States, 135 S. Ct. 2551, 2563 (2015). Taylor claims the
§

924(c)(3)

residual

clause

is

also

vague,

and

thus

unconstitutional, so his ACCA conviction can stand only if one of
his other crimes of conviction--robbery under 18 U.S.C. § 2114(a),
kidnapping or attempted kidnapping under 18 U.S.C. § 1201(a)(5),
or assault under 18 U.S.C. § 111(a)(1) and (b)--is a crime of
violence. Taylor, of course, says they are not because none of the
charged crimes meet the definition. The government admits that
kidnapping cannot hold the weight, but argues that the other two
can. Taylor counters that even if assault is a crime of violence,
it cannot hold the weight because it was not listed as a predicate
in the indictment.
We

need

not,

and

so

do

not,

decide

whether

the

§

924(c)(3) residual clause is unconstitutionally vague, or whether
Taylor's enhanced robbery conviction under § 2114(a) is a crime of
violence,

because

his

aggravated

assault

conviction

under

18

U.S.C. § 111(b) is a crime of violence under the "force" clause,
and because Taylor cannot show that any constructive amendment to
the indictment was prejudicial.
The Assault Predicate
Physical force under the ACCA "means violent force-—that
is, force capable of causing physical pain or injury to another

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person." Johnson v. United States, 559 U.S. 133, 140 (2010). To
determine whether a crime requires the use, attempted use, or
threatened use of violent force, we apply a categorical approach.
That means we consider the elements of the crime of conviction,
not the facts of how it was committed, and assess whether violent
force is an element of the crime. United States v. Fish, 758 F.3d
1, 5 (1st Cir. 2014). For those not in the know, the "'[e]lements'
are the 'constituent parts' of a crime's legal definition--the
things the 'prosecution must prove to sustain a conviction.' At a
trial, they are what the jury must find beyond a reasonable doubt
to convict the defendant." Mathis v. United States, 136 S. Ct.
2243, 2248 (2016) (quoting Black's Law Dictionary 634 (10th ed.
2014)). Some statutes are divisible, meaning they list elements in
the alternative. If a statute is divisible, then we apply the
modified categorical approach:

we consult a limited category of

documents known as "Shepard Documents"--including the indictment
or information and the jury instructions--to figure out which
version of the crime the defendant was charged with committing,
then we consider what those elements require. See Fish, 758 F.3d
at 6.
Some crimes are defined broadly enough to cover some
conduct that meets the force clause definition and some conduct
that does not. "For example, in Massachusetts, the broad definition
of simple assault and battery encompasses both a devastating

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beating and a tap on the shoulder." Fish, 758 F.3d at 5. (A tap on
the shoulder, of course, is not capable of causing physical pain
or injury and so does not require violent force.) See id.; Johnson,
559 U.S. at 140. Using the element-based analysis, our goal is "to
determine

whether

the

conduct

criminalized

by

the

statute,

including the most innocent conduct," requires the use of violent
force. Id. If not, the crime cannot support a conviction under the
ACCA. See id.
Subsection (a) of 18 U.S.C. § 111, the assault statute
at

issue,

provides

that

whoever

"forcibly

assaults,

resists,

opposes, impedes, intimidates, or interferes with" current or
former federal officers
shall, where the acts in violation of this section
constitute only simple assault, be fined under this
title or imprisoned not more than one year, or both,
and where such acts involve physical contact with
the victim of that assault or the intent to commit
another felony, be fined under this title or
imprisoned not more than 8 years, or both.
18 U.S.C. § 111. Subsection (b) provides for enhanced penalties if
the perpetrator "uses a deadly or dangerous weapon (including a
weapon intended to cause death or danger but that fails to do so
by reason of a defective component) or inflicts bodily injury." 18
U.S.C. § 111(b).
As between subsections (a) and (b), the statute is
plainly divisible:

the subsections are set out in the alternative

and each carries its own penalties. See Mathis, 136 S. Ct. at 2256.
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Subsection (a) is likewise divisible because it sets out elements
in

the

alternative--a

defendant

can

be

convicted

of

"simple

assault" under § 111(a) with or without coming into physical
contact with the officer or the intent to commit another felony-and each alternative carries its own penalties. So, we look to the
indictment and jury instructions to determine the elements of
Taylor's crime of conviction.5 According to those documents, Taylor
did

(1)

"forcibly"

(2)

assault,

resist,

oppose,

impede,

or

interfere with the Postal Letter Carrier, and he (3) used a "deadly
and dangerous weapon" in the commission of that assault, or "did
inflict bodily injury" on the Postal Letter Carrier.
In assessing whether the enhanced versions of § 111(b)
are crimes of violence, we do not write on a clean slate. In fact,
every court we are aware of that has considered the issue has found
that it is because the elements of the enhanced offense require
the use, attempted use, or threatened use of force capable of
causing pain or injury. United States v. Rafidi, 829 F.3d 437,
445–46 (6th Cir. 2016); United States v. Hernandez-Hernandez, 817
F.3d 207, 215 (5th Cir. 2016) (decided under Sentencing Guidelines
§ 2L1.2); United States v. Green, 543 F. App'x 266, 272 (3d Cir.

5

We assume here that subsection (b) is not divisible because
we need not decide the question: Taylor's indictment and the jury
instructions list in the alternative both parts of subsection (b)-the use of a deadly or dangerous weapon and the infliction of
bodily injury--and as we will explain shortly, both require the
use, attempted use, or threatened use of violent force.

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2013) (decided under Sentencing Guidelines § 4B1.1); United States
v. Juvenile Female, 566 F.3d 943, 948 (9th Cir. 2009) (decided
under 18 U.S.C. § 16). These courts' rationale comports with our
precedent, and so we agree.
First,

the

elements

of

the

unenhanced

offense.

The

government must show that the defendant acted "forcibly" under §
111(a). The element of "forcible" action can be met by a showing
of either physical contact with the federal agent, or by "such a
threat or display of physical aggression toward the officer as to
inspire fear of pain, bodily harm, or death." E.g., Rafidi, 829
F.3d at 446 (quoting United States v. Chambers, 195 F.3d 274, 277
(6th Cir. 1999)); United States v. Schrader, 10 F.3d 1345, 1348
(8th Cir. 1993). "Forcibly" modifies all of the actions that
follow, including assault. See United States v. Charles, 456 F.3d
249, 255 (1st Cir. 2006). The government must also prove an
assault, or a similar act of resisting, opposing, or impeding an
officer.6 Assault is not defined in the statue and so we give the

6

Many courts have determined that an "assault" is a necessary
element of any § 111(a) conviction, meaning that even to prove a
defendant forcibly intimidated an officer, for example, the
prosecution must show an assault occurred. United States v.
Wolfname, 835 F.3d 1214, 1219 (10th Cir. 2016) (describing this as
the consensus view, collecting cases); but see United States v.
Briley, 770 F.3d 267, 274 (4th Cir. 2014) (concluding the
opposite), cert. denied, 135 S. Ct. 1844 (2015). We need not
address this issue, though--the parties assume that assault is the
only relevant crime and they do not address the other actions (even
though the jury instructions listed them in the alternative). And
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term its common law meaning. See United States v. Bayes, 210 F.3d
64, 68 (1st Cir. 2000); United States v. Frizzi, 491 F.2d 1231,
1231 (1st Cir. 1974). At common law, assault meant "an attempt to
commit

a

battery"

or

"an

act

putting

another

in

reasonable

apprehension of bodily harm." Bayes, 201 F.3d at 68 (quoting United
States v. Bell, 505 F.2d 539, 540 (7th Cir. 1974)). A battery is
the "slightest willful offensive touching." Id.
We

need

not

dwell

on

§

111(a).

Battery

is

the

prototypical overbroad crime because it can encompass behavior
that is capable of causing physical pain or injury and conduct
that is not, such as our shoulder-tapping example from above. See,
e.g., Fish, 758 F.3d at 5. Assault, which can be proven by an
attempt to commit battery, is likewise overbroad. Our case law
confirms that § 111(a) has been applied to this type of offensive
yet painless act:

for example, we have found that a defendant

violated § 111(a) by spitting in a mail carrier's face. Frizzi,
491 F.2d at 1231; see also United States v. Ramirez, 233 F.3d 318,
322 (5th Cir. 2000) (collecting cases), overruled on other ground
by United States v. Cotton, 535 U.S. 625, 629 (2002). So, we turn
to the enhancement provisions that applied to Taylor's conviction.
The first enhanced version of § 111 is met when the
defendant "uses a deadly or dangerous weapon" in assaulting the

either way, the important point is that all of these actions must
be done "forcibly" under § 111.

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federal officer. A deadly or dangerous weapon is "any object which,
as used or attempted to be used, may endanger the life of or
inflict great bodily harm on a person." United States v. Sanchez,
914 F.2d 1355, 1358 (9th Cir. 1990). "Not the object's latent
capability alone, but that, coupled with the manner of its use, is
determinative." United States v. Loman, 551 F.2d 164, 169 (7th
Cir. 1977) (quoting United States v. Johnson, 324 F.2d 264, 266
(4th Cir. 1963)). Recall that to be a crime of violence, the crime
must require the "use, attempted use, or threatened use" of "force
capable of causing physical pain or injury to another person."
Johnson, 559 U.S. at 140. A defendant who acts "forcibly" using a
deadly or dangerous weapon under § 111(b) must have used force by
making physical contact with the federal employee, or at least
threatened the employee, with an object that, as used, is capable
of causing great bodily harm.
As we recently observed in assessing Massachusetts'
Assault with a Dangerous Weapon statute:

"the harm threatened by

an assault is far more violent than offensive touching when
committed with a weapon that is designed to produce or used in a
way that is capable of producing serious bodily harm or death. As
a result, the element of a dangerous weapon imports the 'violent
force' required by Johnson into the otherwise overbroad simple
assault statute." United States v. Whindleton, 797 F.3d 105, 114
(1st Cir. 2015), cert. dismissed, 137 S. Ct. 23 (2016), and cert.

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denied, 137 S. Ct. 179 (2016); accord United States v. Hudson, 823
F.3d 11, 18 (1st Cir. 2016). The same logic applies here. It is
possible to commit simple assault under § 111(a) without using
violent force. But, this enhancement necessarily requires the use
or threat of force "capable of causing physical pain or injury to
another." Johnson, 559 U.S. at 140. Even if simple assault under
§ 111(a) does not require violent force, this enhanced version
does.
The second enhanced version of § 111 is met when the
defendant inflicts bodily injury in the course of the forcible
assault. If "a slap in the face" counts as violent force under
Johnson because it is "capable" of causing pain or injury, 559
U.S. at 143, a "forcible" act that injures does, too, because the
defendant "necessarily must have committed an act of force in
causing the injury," Juvenile Female, 566 F.3d at 946-48 (holding
that assault "resulting in bodily injury" under § 111(b) is a crime
of violence); accord Hernandez-Hernandez, 817 F.3d at 216-17. And
Taylor makes no argument that it does not.
Attempting to forestall this conclusion, Taylor argues
that to qualify as a crime of violence, § 111(b) must require that
the use of force be at least reckless. The jury was instructed
that the government had to prove Taylor "intended to assault," so
we take his argument to mean that Taylor thinks a defendant could
be

convicted

of

intentionally

and

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assaulting,

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accidentally using a dangerous weapon or injuring, a federal
employee. But Taylor cites no authority to support this argument,
and we have found none.7 He must give us some reason to believe
the statute might apply in the manner he claims because "we need
not consider fanciful, hypothetical scenarios" in determining
whether a crime is a crime of violence. Fish, 758 F.3d at 6.
The Constructive Amendment
Finally, even if § 111(b) is a crime of violence, Taylor
says for the first time on appeal that the assault cannot support
his conviction under § 924(c) because assault was not listed as a
predicate crime in the indictment. Taylor was charged with using
a firearm during and in relation to a crime of violence, "to wit"
robbery

and

attempted

robbery,

kidnapping,

and

attempted

kidnapping. But, the jury was instructed that it could also convict
Taylor under § 924(c) if he used a firearm during and in relation
to

the

assault

under

§

111(b).

7

According

to

Taylor,

this

To the contrary, although the case law on this point is
sparse in this circuit, the only authorities we have found indicate
that the crime and the enhancements require an intentional act,
not merely a reckless or accidental one. See United States v.
Feola, 420 U.S. 671, 686 (1975) (§ 111 requires "the criminal
intent to do the acts therein specified"); United States v. AcostaSierra, 690 F.3d 1111, 1123 (9th Cir. 2012) (under § 111, defendant
must have acted "knowingly and intentionally and forcibly");
United States v. Arrington, 309 F.3d 40, 44 (D.C. Cir. 2002)
(weapon must be used intentionally under § 111(b)); cf. Popal v.
Gonzales, 416 F.3d 249, 254 n.5 (3d Cir. 2005) (distinguishing
assault under § 111, which requires willfulness, from Pennsylvania
simple assault, which can be accomplished recklessly).

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discrepancy is a constructive amendment, so a § 924(c) conviction
predicated on the assault conviction cannot stand.
"[A] constructive amendment occurs when the charging
terms of an indictment are altered, either literally or in effect,
by prosecution or court after the grand jury has last passed upon
them." United States v. McIvery, 806 F.3d 645, 652 (1st Cir. 2015)
(quoting United States v. Brandao, 539 F.3d 44, 57 (1st Cir.
2008)), cert. denied, 137 S. Ct. 44 (2016). The indictment did not
include assault in the list of predicate crimes, but the jury
instructions did. This literal alteration of the charging terms is
a constructive amendment. But, that is as far as Taylor's argument
takes

him.

We

consider

Taylor's

constructive

amendment

claim

forfeited. See United States v. Olano, 507 U.S. 725, 733-34 (1993).
That means we review for plain error, but Taylor has not shown the
constructive amendment affected his substantial rights. See United
States v. Vizcarrondo-Casanova, 763 F.3d 89, 99-100 (1st Cir.
2014), cert. denied, 135 S. Ct. 307 (2014), and cert. denied sub
nom. Aponte-Sobrado v. United States, 136 S. Ct. 260 (2015), and
cert. denied sub nom. Díaz-Colón v. United States, 136 S. Ct. 30
(2015); Brandao, 539 F.3d at 60.
The rule against constructive amendments exists "to
preserve the defendant's Fifth Amendment right to indictment by
grand jury, to prevent re-prosecution for the same offense in
violation of the Sixth Amendment, and to protect the defendant's

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Sixth Amendment right to be informed of the charges against him."
Vizcarrondo-Casanova, 763 F.3d at 99 (quoting Brandao, 539 F.3d at
57). Taylor argues the prejudice here is to his Fifth Amendment
right to indictment by grand jury because the trial jury could
have found he used the gun exclusively in conjunction with the
assault, not the robbery or the kidnapping, thus he is entitled to
reversal.
To support that claim, Taylor relies on Stirone v. United
States, 361 U.S. 212 (1960). But Stirone does not help Taylor. In
Stirone, the defendant was indicted on a charge of interfering
with

Pennsylvania's

presented

evidence

inbound
that

he

sand
also

trade,

but

interfered

the

with

government
the

state's

outbound steel trade, and the trial court permitted the jury to
convict

on

constructive

either

basis.

amendment,

361

the

U.S.

Court

at

217.

reversed

Because
the

of

the

defendant's

conviction. Id. at 219. In United States v. Brandao, 539 F.3d at
60, we confronted the question of whether or not constructive
amendments are prejudicial per se and determined they are not,
distinguishing Stirone over the defendant's objection that the
case compelled a contrary conclusion. As we explained in Brandao,
the error in Stirone was preserved--meaning unlike here, the
defendant objected at trial--so plain error review did not apply.
539 F.3d at 61. And, as we also explained in Brandao, the error in
Stirone was prejudicial because it permitted the jury to convict

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based on the outbound interference claim, "an act not alleged at
all in the indictment." 539 F.3d at 62 (emphasis added and citation
omitted). So, the Stirone error prejudiced both the defendant's
Fifth Amendment right to indictment by grand jury and his Sixth
Amendment right to be informed of the charges against him. See id.
Here, Taylor did not object at trial, so under Brandao,
539 F.3d at 60, plain error review applies. And a look at the
indictment might explain why Taylor did not object:

the grand

jury indicted Taylor for using a firearm during the assault. So,
even though the assault was not listed as a predicate to the §
924(c) charge of using a firearm during a crime of violence, the
grand jury found that Taylor did use a firearm during the assault.
Under the circumstances, Taylor cannot show this prejudiced his
defense.8
Because the enhanced assault conviction under § 111(b)
is a crime of violence under the force clause of § 924(c)(3), and
because Taylor was not prejudiced by any constructive amendment,
his conviction under § 924(c) is affirmed.

8

In his reply brief, Taylor also relies on United States v.
Randall, 171 F.3d 195 (4th Cir. 1999), where the Fourth Circuit
reversed a conviction because the defendant was indicted for using
a firearm while distributing drugs, but the jury instructions
permitted conviction for using a firearm in connection with
possession with intent to distribute. This case is distinguishable
from Taylor's situation because the possession charge that served
as the basis for Randall's conviction was not listed in the
indictment. In any case, in Randall the Fourth Circuit did not
apply plain error review.

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The Sentence
In his final claim on appeal, Taylor challenges the
procedural reasonableness of his sentence.9 Over two objections,
which we address in turn, Taylor was sentenced to about thirty
years in prison. His sentence includes a downward variance, but
from a Guidelines range that Taylor argues was erroneously adopted
by the trial court. On this argument, Taylor gains some traction
at last. As we describe below, Taylor challenges his sentence on
a ground not raised to the district court, so Taylor bears the
burden of showing plain error, see United States v. MarchenaSilvestre, 802 F.3d 196, 200 (1st Cir. 2015), which as we have
noted is a not-so-defendant-friendly standard, see United States
v. Williams, 717 F.3d 35, 42 (1st Cir. 2013).
Taylor

objected

to

his

Guidelines

sentencing

range

below, claiming his prior conviction for larceny from the person
is not a crime of violence under the categorical approach mandated
by Fish, 758 F.3d at 5, and the Presentence Investigation Report
erroneously categorized it as such by considering the facts of the
offense rather than the elements of the crime. The trial court
judge rejected this argument, finding she was bound by this Court's
holdings to find that larceny from the person was a crime of

9

Although a heading in Taylor's brief describes his sentence
as procedurally and substantively unreasonable, he does not
develop any substantive reasonableness argument at all, so it is
waived. Oladosu, 744 F.3d at 39.

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violence under the Guidelines' career offender residual clause. As
a result, Taylor was sentenced as a career offender with a base
offense level of 37 and a total criminal history score of 13. By
the sentencing math, his Guidelines range was 360 months to life
in prison. Had larceny from the person not been counted as a crime
of violence, Taylor's base offense level would have been 34 (not
37), and he would have had 12 (not 13) criminal history points.
The resulting Guidelines range would have been 235 to 293 months.
Taylor also argued below that a downward departure was
warranted because his criminal history category overstated the
seriousness of his past crimes and the likelihood that he would
commit other crimes in the future. For instance, Taylor noted that
two

of

his

criminal

history

points

committed when he was very young:

were

for

minor

offenses

he accrued one point for

disorderly conduct because he was caught carrying a BB gun when he
was sixteen; he accrued another point for receiving a stolen motor
vehicle when he was seventeen, though he claimed he was using a
friend's vehicle at the time so it was "essentially a Use Without
Authority case." Taylor also pointed out that he was prosecuted as
an adult for four offenses committed when he was seventeen, but
Massachusetts

law

crimes

be

would

has

since

juvenile

changed--under

offenses

and

today's

likely

law

subject

those
to

a

diversionary program in lieu of incarceration. Taylor received a
total of six points for those offenses.

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Taylor found a more receptive audience on this front:
the

trial

judge

agreed

that

Taylor's

criminal

history

was

overstated, estimated that if the offenses he committed at age
seventeen were treated as juvenile offenses he would have 11
criminal history points instead of 13, and found Taylor would not
be a career offender because only adult felony convictions are
predicates for career offender status, so his offense level would
be

34.

By

this

hypothetical

"straight

non-career

offender

scoring," the trial court judge estimated Taylor's Guidelines
range would be 235 to 293 months.
In the end, the trial court judge refused to adopt a
lower

Guidelines

range.

Nevertheless,

she

varied

from

the

calculated range of 360 months to life and instead sentenced Taylor
to 235 months, plus 120 months for his conviction under § 924(c).
Before the sentencing wrapped up, the trial court judge was asked
by the prosecutor whether she would have imposed the same sentence
whether or not Taylor was considered a "career offender." She
agreed that she would.
On appeal, Taylor now argues that his Guidelines range
was wrong because Massachusetts' crime of larceny from the person
is a crime of violence only under the now-unconstitutional residual
clause. The government concedes the point, and agrees that counting
the larceny conviction as a crime of violence was a "clear or
obvious" error. See Marchena-Silvestre, 802 F.3d at 200. To be

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entitled to relief on plain error review, then, Taylor must show
that the error impacted his substantial rights, and that it
seriously affected the "fairness, integrity, or public reputation"
of the judicial proceedings. Id. (citation omitted). According to
the government, it did neither because the record makes clear that
Taylor's sentence was not imposed as a result of the error. We
disagree.
An error affects the defendant's substantial rights if
it is prejudicial, and in the sentencing context prejudice means
there is "a reasonable likelihood 'that, but for the error, the
district court would have imposed a different, more favorable
sentence.'" Marchena-Silvestre, 802 F.3d at 200 (quoting United
States v. Ortiz, 741 F.3d 288, 293–94 (1st Cir. 2014)). "In most
cases a defendant who has shown that the district court mistakenly
deemed

applicable

an

incorrect,

higher

Guidelines

range

has

demonstrated a reasonable probability of a different outcome."
Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016).
This is so because the Guidelines range provides the trial court
with "a framework or starting point to guide the exercise of the
court's discretion." Marchena-Silvestre, 802 F.3d at 201 (quoting
United States v. Millán–Isaac, 749 F.3d 57, 66-67 (1st Cir. 2014))
(internal citations and quotation marks omitted). If the starting
point is moved forward because of error, it is reasonable to assume
that the end point will also be further down the track than it

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would have been if not for the error. Id. This means that where
the starting point is wrong, the defendant has shown a "reasonable
probability of a different outcome," even if the sentence imposed
is within the correct Guidelines range that would be applied on
remand. Molina-Martinez, 136 S. Ct. at 1345; see United States v.
Hudson, 823 F.3d 11, 19 (1st Cir. 2016).
The government can counter by pointing to "'a clear
statement by the [sentencing] court' that would be sufficient to
'diminish the potential of the [Guideline Sentencing Range] to
influence the sentence actually imposed.'" Hudson, 823 F.3d at 19
(quoting Marchena-Silvestre, 802 F.3d at 201). "A sentencing court
might, for example, make it clear that it was aware of a possible
flaw in its calculation of a guideline sentencing range, and
explain that its sentence would nevertheless be the same under an
alternative
appealed."

analysis

pressed

Marchena-Silvestre,

by

the

802

party

F.3d

at

that
201.

ultimately
In

those

circumstances, we typically look for an indication that the trial
court "intended to untether" the sentence from the Guidelines
range. Hudson, 823 F.3d at 19. For instance, in United States v.
Tavares, 705 F.3d 4, 27 (1st Cir. 2013), the parties disputed
whether Tavares' criminal history category was five or six, and
the district court clearly erred in failing to choose. But,
believing either potentially-applicable range too lenient, the
trial court threw the Guidelines out the window and imposed the

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statutory maximum sentence. Under these circumstances we found the
error was harmless because the sentencing Guidelines did "not
matter" or impact the sentence imposed. Id. at 25; see also United
States

v.

Romero-Galindez,

782

F.3d

63,

70

(1st

Cir.

2015)

(Guidelines irrelevant where trial court gave a higher statutory
sentence). But absent a clear statement in the record showing the
Guidelines

error

did

not

influence

the

sentence

imposed,

a

Guidelines error is a prejudicial error. See Hudson, 823 F.3d at
19-20; United States v. McGhee, 651 F.3d 153, 159 (1st Cir. 2011)
(remanding for resentencing even though defendant was sentenced
below the Guidelines range where the transcript did not show "that
the career offender designation was entirely irrelevant").
Taylor's starting point was wrong: the trial court judge
adopted

the

Guidelines

range

set

out

in

the

Presentence

Investigation Report, which counted Taylor's larceny from the
person conviction as a crime of violence. "In most cases" that
would be enough to show "a reasonable probability of a different
outcome." Molina-Martinez, 136 S. Ct. at 1346. The government
contends this is not "most cases" because the trial court judge
made a clear statement showing she based Taylor's sentence on
factors independent of the Guidelines:

she said she would have

imposed the same sentence regardless of Taylor's "career offender"
status, a fact she believed implicit in her statement of reasons.

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We do not agree that this statement was clear enough to
show the erroneously calculated Guidelines range did not influence
the sentence ultimately imposed. It is true that the trial court
judge estimated a "straight non-career offender scoring" in her
statement

of

reasons

that

excluded

Taylor's

juvenile

larceny

conviction as a career offender predicate, thereby reducing his
offense level. But the Guidelines sentencing range is a product of
the offense level and the criminal history score. The court's
explanation only accounts for the inflated offense level, but the
criminal history score was also inflated from category V to
category VI because of the extra point that resulted from the
erroneous

consideration

of

Taylor's

larceny

from

the

person

conviction as a crime of violence. And the judge's statement of
reasons does not explain away the potential impact of the inflated
criminal history score. To the contrary, it shows the judge
considered Taylor's erroneously-calculated criminal history score,
determined it was overstated because Taylor was prosecuted as an
adult for crimes he committed at age seventeen, and varied downward
from the starting point. Indeed, she knocked off enough points to
bump Taylor down into a lower criminal history category--from
criminal history category VI to criminal history category V. Of
course,

if

Taylor's

criminal

history

score

were

correctly

calculated he would not have received an additional point for the
larceny conviction being a crime of violence, and he would have

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in

a

lower

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category

to

Entry ID: 6068410

begin

with;

considering the correct score, the judge may have varied lower
still. On this record we cannot know because the judge's reasons
had nothing to do with the source of the error that Taylor alleges
now--the improper inclusion of the larceny conviction as a crime
of violence.
In any case, the statement of reasons does not show that
the Guidelines were irrelevant, or that the trial court judge
intended to untether Taylor's sentence from the Guidelines range.
The statement only shows the trial court judge started from the
wrong starting point, then varied downward from that starting point
for a reason unrelated to the error that made the starting point
wrong to begin with. The fact that she varied downward for an
unrelated reason does not eliminate the potential influence of the
incorrectly calculated Guidelines range, even though the sentence
she imposed is within the correct range. "Even if the sentencing
judge sees a reason to vary from the Guidelines, 'if the judge
uses the sentencing range as the beginning point to explain the
decision to deviate from it, then the Guidelines are in a real
sense the basis for the sentence.'" Molina-Martinez, 136 S. Ct. at
1345 (quoting Peugh v. United States, 133 S. Ct. 2072, 2083
(2013)). On this record, it is not clear to us that the Guidelines
range

did

not

influence

the

sentence

the

trial

court

judge

ultimately imposed. Taylor has therefore shown that the improperly

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calculated Guidelines range was prejudicial, and so had an impact
on his substantial rights. See id. at 1347.
That leaves only the question of whether the error
seriously affected the "fairness, integrity, or public reputation"
of the judicial proceedings. Marchena-Silvestre, 802 F.3d at 200.
We believe that the district court's application of an erroneouslyinflated

Guidelines

range,

and

the

possibility

that

Taylor's

sentence was inflated as a result, compromised the fairness and
integrity of his sentencing. Accord id.; United States v. TorresRosario,

658

F.3d

110,

117

(1st

Cir.

2011)

(remanding

for

resentencing to avoid a "miscarriage of justice" where error
resulted in "difference in potential jail time"); cf. Hudson, 823
F.3d at 20 (where Guidelines range was wrong, remanding for
resentencing without addressing fourth prong of plain error). We
therefore exercise our discretion to correct this error and vacate
the sentence. See Marchena-Silvestre, 802 F.3d at 202.
We recognize that Taylor's sentence on remand may be
unchanged, but as we explained in United States v. Hernandez
Coplin, 24 F.3d 312, 320 (1st Cir. 1994),
[r]esentencing in this instance requires no
additional
evidence
and
is
only
a
small
administrative burden. Even small adjustments could
make a lot of difference to the defendant. Above
all, the great latitude possessed by the district
court in deciding how far to depart makes it all
the more important that the district judge exercise
a fully informed discretion.

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We thus remand to permit the trial court judge to conduct a new
sentencing hearing wherein she may, with the benefit of our
thinking, exercise her "fully informed discretion." Id.
The End
We affirm Taylor's conviction, but remand this case to
the district court for reconsideration of Taylor's sentence.

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