FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. D. Brock Hornby, U.S. District Judge]
Davis, with whom Tisdale & Davis, P.A. was on brief, for
Renée M. Bunker, Assistant United States Attorney,
with whom Thomas E. Delahanty II, United States Attorney, was
on brief, for appellee.
Howard, Chief Judge, Lynch and Barron, Circuit Judges.
Trezjuan Thompson pled guilty to drug conspiracy and arson
charges. Before sentencing, he moved to withdraw his plea,
primarily arguing that he did not have the opportunity to
review personally certain discovery materials.
district court denied Thompson's motion, United
States v. Thompson, No.
2:10-cr-200-DBH, 2013 WL 1809659 (D. Me. Apr. 29, 2013), and
sentenced him to 327 months' imprisonment based, in part,
on its finding that Thompson was a career offender under the
sentencing guidelines. See U.S.S.G. §4B1.1. One
of the predicate offenses supporting Thompson's career
offender designation was a 2006 Massachusetts conviction for
assault and battery with a dangerous weapon
("ABDW"). See Mass. Gen. Laws ch. 265,
§ 15A(b). The court held that the ABDW conviction
qualified as a "crime of violence" under the
so-called "residual clause" of U.S.S.G.
opening brief raises only a single issue, namely, the
correctness of the district court's denial of the motion
to withdraw his guilty plea. This challenge need not detain us
long. In short, we perceive no abuse of discretion in the
district court's thorough treatment of the matter.
See United States v. Gates, 709
F.3d 58, 69 (1st Cir. 2013). And, contrary to his contention
on appeal, Thompson was not entitled to a hearing because
"[t]he district judge had everything that he needed in
the paper record" to dispose of the motion. United
States v. Chambers, 710 F.3d 23, 30
(1st Cir. 2013).
the pendency of Thompson's appeal, another issue arose.
The Supreme Court, in Johnson v. United
States, 135 S.Ct. 2551 (2015), held that the residual
clause of the Armed Career Criminal Act's
("ACCA") definition of "violent felony"
was unconstitutionally vague. The district court's
finding that Thompson qualified as a career offender was
predicated upon the applicable guideline's identical
residual clause. Thompson's opening brief, which was
filed before Johnson, did not challenge any aspect
of his sentence, much less argue that the residual clause was
unconstitutionally vague. Thompson raised the issue for the
first time in a citation of supplemental authority pursuant
to Federal Rule of Appellate Procedure 28(j), requesting
remand in light of Johnson. We ordered supplemental
briefing. In response, the government conceded that
Johnson invalidated the career offender
guideline's residual clause, but argued that
Thompson's ABDW conviction fell within the separate
"elements" or "force"
in Beckles v. United States, U.S,
No. 15-8544, slip op. (Mar. 6, 2017), the Supreme Court
squarely held that Johnson does not apply to the
career offender guideline. This is because the sentencing
guidelines, unlike the ACCA, "are not subject to a
vagueness challenge under the Due Process Clause."
Id. at 5. We are not bound by the government's
concession, which, while understandable before
Beckles,  turned out to be incorrect. See United
Sánchez-Berríos, 424 F.3d 65, 81 (1st
Cir. 2005) ("A concession by either party in a criminal
case as to a legal conclusion is not binding on an appellate
court."). In deciding whether to accept a concession, we
consider: (1) "whether the issue is recurrent so [a]
decision would give guidance to the district courts";
(2) "whether it would be unseemly to accept, even
arguendo, a mistaken legal proposition and reason
from it to decide the case"; and (3) "whether the
issues are technical and complex and not explored carefully
in existing decisions so that adversary briefing would be
critical." United States v.
Mescual-Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004).
Johnson's applicability to the career offender
guideline has proven to be a frequently recurring issue in
this circuit and, in light of Beckles, the proper
resolution of this issue is crystal clear. Accordingly, we
"ignore the government's concession" and
"follow [the Supreme Court's] clear precedent."
United States v. Vega-Ortiz, 425
F.3d 20, 22 (1st Cir. 2005).
foregoing reasons, we AFFIRM Thompson's
convictions and sentence.
 The relevant subsection defined
"crime of violence" to include an offense that
"is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
another." U.S.S.G. §4B1.2(a)(2) (2013)
(emphasis added). The underscored language, often referred to
as the residual clause, has since been stricken from the
guideline. See Sentencing ...