US v. Windley

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Per Curiam. Published. [16-1949]

Case: 16-1949

Document: 00117180288

Page: 1

Date Filed: 07/21/2017

Entry ID: 6107712

United States Court of Appeals
For the First Circuit
No. 16-1949
UNITED STATES OF AMERICA,
Appellant,
v.
TRAVIS WINDLEY,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]

Before
Torruella, Lynch, and Kayatta,
Circuit Judges.

Mark T. Quinlivan, Assistant U.S. Attorney, with whom William
D. Weinreb, Acting U.S. Attorney, was on brief, for appellant.
Daniel N. Marx, with whom Fick & Marx LLP was on brief, for
appellee.

July 21, 2017

Case: 16-1949

Document: 00117180288

Page: 2

Date Filed: 07/21/2017

Entry ID: 6107712

PER CURIAM. After Travis Windley pleaded guilty to being
a felon in possession of a firearm under 18 U.S.C. § 922(g)(1),
the

district

court

sentenced

him

to

ninety-six

imprisonment, over the government's objection.

months'

The sole issue

raised in this ensuing appeal by the government is whether the
district

court

erred

in

determining

that

Windley's

prior

convictions in Massachusetts state court for assault and battery
with a dangerous weapon (ABDW) were not convictions for a "violent
felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B).

That determination makes a difference because two

of Windley's other convictions do qualify as violent felonies under
ACCA1; hence, even one more conviction for a violent felony would
have triggered a fifteen-year mandatory minimum sentence.
§ 924(e)(1).

Id.

In light of our recent opinion in Bennett v. United

States, No. 16-2039, slip op. at 54 (1st Cir. July 5, 2017),2 we
affirm.

1

Both convictions were for Massachusetts assault with a
dangerous weapon. See United States v. Whindleton, 797 F.3d 105,
116 (1st Cir. 2015), cert. dismissed, 137 S. Ct. 23 (2016), and
cert. denied, 137 S. Ct. 179 (2016).
2
We recognize that questions have recently arisen as to
whether the opinion in Bennett should be withdrawn in light of the
death of the petitioner in that case. See Motion for Withdrawal
of Court's Opinion, Bennett v. United States, No. 16-2039 (1st
Cir. July 13, 2017).
Nevertheless, we cite the opinion here
because this panel, after careful consideration, reached the same
conclusion about whether reckless offenses qualify as violent
felonies under the force clause. Thus, by citing Bennett, we not
only follow precedent that is currently binding but also endorse
and adopt its reasoning as our own.
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Case: 16-1949

Document: 00117180288

Page: 3

Date Filed: 07/21/2017

Massachusetts ABDW comes in two forms:
form and a reckless form.

Entry ID: 6107712

an intentional

See United States v. Tavares, 843 F.3d

1, 12 (1st Cir. 2016), reh'g denied, 849 F.3d 529 (1st Cir. 2017).
The parties tell us that Shepard documents relating to Windley's
ABDW convictions no longer exist, so those convictions qualify as
convictions for violent felonies only if both the intentional and
the reckless forms of ABDW are violent felonies, see United States
v. Faust, 853 F.3d 39, 51–53 (1st Cir. 2017) (citing, inter alia,
Shepard v. United States, 544 U.S. 13 (2005)).
Supreme

Court's

ruling

that

ACCA's

In the wake of the

residual

clause

is

unconstitutionally vague, Johnson v. United States, 135 S. Ct.
2551, 2557 (2015), we limit our inquiry to ACCA's so-called "force
clause," which defines as a violent felony any crime that "has as
an element the use, attempted use, or threatened use of physical
force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i).
We

have

already

held

that

intentional

ABDW

satisfies

the

identically worded force clause in the definition of a "crime of
violence" in the sentencing guidelines.
12–13.

See Tavares, 843 F.3d at

Nevertheless, if reckless ABDW is not a violent felony, we

cannot conclude that Windley was convicted of a violent felony.
So framed, the pivotal question is whether Massachusetts reckless
ABDW, given its mens rea requirement, has as an element the
"use . . . of physical force against the person of another."
U.S.C. § 924(e)(2)(B)(i).

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18

Case: 16-1949

Document: 00117180288

Bennett

held

Page: 4

that

the

Date Filed: 07/21/2017

Maine

offense

of

Entry ID: 6107712

aggravated

assault does not satisfy the force clause because it can be
committed with a mens rea of recklessness.
7–8, 54.

Bennett, slip op. at

Under the Maine criminal code, which is based on the

Model Penal Code, a person behaves recklessly when that person
"consciously disregards a risk that the person's conduct will
cause" a result that is an element of the crime.
17–A, § 35(3)(A); see Bennett, slip op. at 7–8.

Me. Stat. tit.
A conviction for

aggravated assault in Maine, therefore, only requires proof that
the defendant consciously disregarded a risk of causing bodily
injury.3

See Me. Stat. tit. 17–A, §§ 35(3)(A), 208; see also

Bennett, slip op. at 13.

In Bennett, we reasoned that there is

grievous ambiguity as to whether the "use . . . of physical force
against the person of another" includes the reckless version of
Maine aggravated assault, and that the rule of lenity therefore
required us to conclude that it does not.

Bennett, slip op. at 3–

4, 40–42, 52–54.
The mens rea required for Massachusetts reckless ABDW
provides no better fit with ACCA's requirement that force be used

3

At the time of the petitioner in Bennett's conviction, the
crime came in three different forms: "intentionally, knowingly,
or recklessly caus[ing]: A. Serious bodily injury to another; or
B. Bodily injury to another with use of a dangerous weapon; or C.
Bodily injury to another under circumstances manifesting extreme
indifference to the value of human life." Bennett, slip op. at 7
(quoting Me. Rev. Stat. Ann. tit. 17-A, § 208 (1981)).
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Case: 16-1949

Document: 00117180288

Page: 5

against the person of another.

Date Filed: 07/21/2017

Entry ID: 6107712

Cf. United States v. Fish, 758

F.3d 1, 9–10 (1st Cir. 2014). While a conviction for Massachusetts
ABDW

requires

that

the

wanton

or

reckless

act

be

committed

intentionally, Commonwealth v. Burno, 487 N.E.2d 1366, 1368–69
(Mass. 1986), it does not require that the defendant intend to
cause injury, see Commonwealth v. Welansky, 55 N.E.2d 902, 910–12
(Mass. 1944); Commonwealth v. Correia, 737 N.E.2d 1264, 1266–67
(Mass. App. Ct. 2000); see also Fish, 758 F.3d at 10, or even be
aware of the risk of serious injury that any reasonable person
would perceive, see Welansky, 55 N.E.2d at 910; Commonwealth v.
Hall, No. 13-P-0021, 2014 WL 1235920, at *1 & n.1 (Mass. App. Ct.
Mar. 27, 2014) (unpublished disposition); Commonwealth v. Cadoff,
No. 00-P-0218, 2002 WL 407972, at *1 (Mass. App. Ct. Mar. 15, 2002)
(unpublished disposition); see also Bennett, slip op. at 26 n.10.
Like Maine's aggravated assault offense, see, e.g., State v.
Martin, 916 A.2d 961, 965 (Me. 2007); State v. Pineo, 798 A.2d
1093, 1097–98 (Me. 2002), reckless driving that results in a nontrifling injury has led to convictions for Massachusetts reckless
ABDW, see, e.g., Commonwealth v. Green, No. 02-P-0678, 2003 WL
22399532 at *1, *3-4 (Mass. App. Ct. Oct. 21, 2003) (unpublished
disposition); Cadoff, 2002 WL 407972, at *1; Commonwealth v.
Subenko, No. 99-P-1404, 2001 WL 1473887, at *1, *4 (Mass. App. Ct.
Nov. 20, 2001) (unpublished disposition); see also Commonwealth v.
Sostilio,

89

N.E.2d

510,

511–12

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(Mass.

1949)

(upholding

a

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Date Filed: 07/21/2017

Entry ID: 6107712

conviction for reckless manslaughter, which has the same mens rea
requirement as reckless ABDW, in a reckless driving case).

These

are the types of cases that give rise to grievous ambiguity as to
whether the use of physical force against the person of another
includes the reckless causation of bodily injury.
slip

op.

at

40-43.

Thus,

following

and

See Bennett,

adopting

the

sound

reasoning of Bennett, we conclude that Massachusetts reckless ABDW
is not a violent felony under the force clause.
For the foregoing reasons, we affirm Windley's sentence.

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