United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.
Maurice Dubose brings this petition for collateral review
pursuant to 18 U.S.C. § 2255, arguing that his sentence
has been rendered unconstitutional by the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). In that case, the Supreme Court ruled that the
“residual clause” of the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), failed
constitutional scrutiny, a holding later made retroactive to
cases on collateral review, Welch v. United States,
136 S.Ct. 1257 (2016). For the following reasons, the court
grants the petition.
pled guilty before this court on April 5, 2005, to a single
count of being a felon in possession of a firearm. 18 U.S.C.
§ 922(g)(1). He was classified as an armed career
criminal under the residual clause of the ACCA because of
three prior then-qualifying Massachusetts convictions: (1)
manufacturing a class B controlled substance; (2) possession
of a class B controlled substance with intent to distribute
(cocaine); and (3) armed robbery. The court sentenced Dubose
to the mandatory minimum of fifteen years in prison, followed
by three years of supervised release.
as a career criminal under the ACCA requires three predicate
offenses. 18 U.S.C. § 924(e)(1). Both Dubose and the
government agree that his two drug offenses are still ACCA
predicates as “serious drug offense[s].” See
Id. § 924(e)(2)(A). The only dispute is whether the
crime of armed robbery under Massachusetts law qualifies as a
predicate offense under the ACCA's “force
clause.” This clause provides that the term
“violent felony” includes offenses which have
“as an element the use, attempted use, or threatened
use of force against the person of another.”
Id. § 924(e)(2)(B)(i).
outset, the government contends that Dubose has procedurally
defaulted this argument by failing to raise it at his initial
sentencing. This court has rejected that argument on multiple
occasions, as have other judges in this district. See,
e.g., United States v. Brown, No.
03-cr-10067-RGS, Dkt #202 (D. Mass. Oct. 14, 2016);
United States v. Aponte, No. 11-cr-30018- MAP, 2016
WL 5338505, at *1 (D. Mass. Sept. 22, 2016); Turner v.
United States, No. 03-cr-10166-PBS, Dkt #218 (D. Mass.
Apr. 6, 2016); McFarlane v. United States, No.
05-cr-10130-RWZ, Dkt #73 (D. Mass. Jan. 12, 2016); see
also United States v. Sabetta, No. 00-cr-135-S-PAS, 2016
WL 6157454, at *10-12 (D.R.I. Oct. 24, 2016). Nothing in this
case compels a different conclusion.
to the merits, in determining whether an offense qualifies as
a crime of violence, a district court is instructed to apply
the so-called “categorical
approach.” United States v. Ramos-Gonzalez,
775 F.3d 483, 504 (1st Cir. 2015). Under that approach, the
facts underlying a defendant's conviction are not
considered. Mathis v. United States, 136 S.Ct. 2243,
2252 (2016). Instead, the court examines the elements of the
offense to determine if “a person convicted of the
offense has ‘necessarily' been found guilty of
[violent] conduct.” United States v. Martinez,
762 F.3d 127, 133 (1st Cir. 2014). To qualify as a
“violent felony” under the ACCA, an offense must
have as an element “violent force-that is,
force capable of causing physical pain or injury to another
person.” Johnson v. United States (Johnson I),
559 U.S. 133, 140 (2010). If it is possible for a defendant
to be convicted of an offense without “the use,
attempted use, or threatened use of physical force, ”
the crime is categorically overbroad and cannot therefore
serve as an ACCA predicate. See United States v.
Whindleton, 797 F.3d 105, 114 (1st Cir. 2015), cert.
denied, 137 S.Ct. 179 (2016).
Massachusetts law, armed robbery is defined as the offense of
robbery while in possession of a dangerous weapon. Mass. Gen.
Laws ch. 265, § 17. A robbery can be committed in two
ways: either “by force and violence” or “by
assault and putting in fear.” Mass. Gen. Laws ch. 265,
§ 19. The First Circuit has unambiguously held that the
latter form of robbery involves a “threatened use of
physical force” sufficient to serve as an ACCA
predicate, United States v. Luna, 649 F.3d 91,
108-109 (1st Cir. 2011), and Dubose does not argue otherwise.
Instead, Dubose advances the counteriargument that armed
robbery committed “by force and violence” does
not (necessarily) have “as an element the use,
attempted use, or threatened use of force” within the
meaning of Johnson I.
its facial incongruity, this argument has won acceptance in
the Ninth Circuit, United States v. Parnell, 818
F.3d 974 (9th Cir. 2016), and the court finds the reasoning
of that case persuasive in light of two unusual features of
armed robbery in Massachusetts. The first is that Massachusetts
has adopted a minority rule about the degree of force
required to satisfy the “force and violence”
element of the offense: “the degree of force is
immaterial so long as it is sufficient to obtain the
victim's property ‘against his will.'”
Commonwealth v. Jones, 362 Mass. 83, 87 (1972)
(quoting Mass. Gen. Laws ch. 277, § 39); accord
Commonwealth v. Joyner, 467 Mass. 176, 187 (2014);
Commonwealth v. Sheppard, 404 Mass. 774, 778 (1989).
the crucial consideration separating a robbery from a larceny
under Massachusetts law is whether “the victim is aware
of the application of force which relieves him of his
property.” Id. at 89. Thus, a perpetrator can
commit a robbery by “the bare act of snatching a purse
from the hand of a victim, in the absence of any prior
awareness by the victim of the impending act.”
Commonwealth v. Brown, 2 Mass.App.Ct. 883, 883
(1974). This is a marked departure from the law of most
states, in which purse-snatching and other thefts involving a
de minimis use of force are not considered to be
robbery. See, e.g., State v. Sein, 590 A.2d
665 (N.J. 1991); see also Commonwealth v. Zangari,
42 Mass.App.Ct. 931, 932 (1997) (Massachusetts “firmly
adopted” the rule “in the face of contrary
authority”). Minimal contact, of course, does not
involve the “violent force” requisite under the
ACCA's force clause. See Johnson I, 559 U.S. at
139 (the force clause does not encompass crimes based on
“even the slightest offensive touching”);
Parnell, 818 F.3d at 979-980.
second unusual feature of Massachusetts armed robbery is that
a dangerous weapon need play no part in the robbery itself,
nor need the victim even be aware of its presence. See
King v. McEachern, 665 F.3d 247, 253 & n.7 (1st Cir.
2011) (collecting cases). This makes armed robbery unlike
other offenses in Massachusetts, such as assault with a
dangerous weapon, where the presence of the weapon
“imports the ‘violent force' required by
Johnson into” an otherwise overbroad statute.
Whindleton, 797 F.3d at 114.
government's first counterargument is that the First
Circuit's decision in Luna forecloses
Dubose's argument. The argument overreads Luna.
In that case, the appellant contended that because the
Massachusetts statute includes an armed robbery based on
“threatening words or gestures, ” the offense did
not satisfy the force clause. 649 F.3d at 108. The First
Circuit rejected this argument, and added, without discussion
of the relevant Massachusetts case law, a passing comment
that the appellant had “provided no reason for us to
conclude that the type of force involved in armed robbery is
not” the sort of violent force required by Johnson
I. Id. at 108. That question was not briefed in
Luna, and the dictum from the Circuit is not binding
on this court.
the government argues that the Massachusetts armed robbery
statute involves violent force because committing a robbery
necessarily demonstrates that the robber is willing to use
violent force to commit the offense. Jones, 362
Mass. at 88-89 (“[T]he law has singled out the robber
from other thieves because of his readiness to inflict bodily
injury upon his victims.”). Therefore, the argument
goes, by using force sufficient to put the victim on notice
that a theft has occurred, the robber silently makes a threat
of force sufficient to satisfy the ACCA.
accurate as a description of the mine-run of armed robbery
cases, the government's argument fails under the elements
test developed by the Supreme Court. The government's
argument would work “[i]f every robbery involved an
implied threat of violent force, ” because under those
circumstances “every victim would be placed in
fear.” Parnell, 818 F.3d at 980. Such is not
the case under Massachusetts law, however: a robbery may be
committed even if the victim is not placed in fear.
Jones, 362 Mass. at 86; Brown, 2
Mass.App.Ct. at 883. Similarly, there is no requirement that
the jury find that the robber actually harbored a willingness
to inflict bodily harm or otherwise use violent force against
a victim. All that is required is a showing of de
minimis force, which is insufficient to clear the
threshold established in Johnson I.
that to the proverbial man in the street, the notion that an
armed robbery is not deemed by the law to be a violent crime
is lawyerly gobbledygook. Were I writing on a clean slate, I
would agree. But in light of the metaphysical approach taken
by the Supreme Court in Mathis and Descamps
distinguishing indivisible from divisible elements in a given
statute, the court is precluded from investigating ...