United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
Willie Dancy seeks habeas corpus relief pursuant to 28 U.S.C.
§ 2255, contending that his sentence as a career
criminal under the Armed Career Criminal Act (ACCA) was
unconstitutionally imposed in light of Johnson v. United
States (Johnson II), 135 S.Ct. 2551 (2015). The court
grants the petition and orders resentencing.
2008, Dancy was convicted at trial of being a felon in
possession of a firearm. 18 U.S.C. § 922(g)(1). The ACCA
subjects felons in possession to enhanced penalties if they
have at least three prior convictions for “a violent
felony or a serious drug offense.” 18 U.S.C. §
924(e)(1). At sentencing, Dancy qualified as an armed career
criminal under the ACCA as a result of Massachusetts
convictions for two serious drug offenses and two violent
felonies, assault and battery on a police officer (ABPO) and
assault and battery with a dangerous weapon
(ABDW). Consequently, the court sentenced Dancy to
the fifteen-year minimum under the ACCA. The First Circuit
affirmed Dancy's sentence on appeal, concluding that APBO
qualified as a violent felony under the ACCA's
“residual clause, ” 18 U.S.C. §
924(e)(2)(B)(ii). See United States v. Dancy, 640
F.3d 455, 470 (1st Cir. 2011). Dancy unsuccessfully sought
habeas relief from this court in November of 2012.
claims of error came back to life in 2015 when Johnson
II held that the ACCA's residual clause was
unconstitutionally void for vagueness. Dancy requested
permission to file a second or successive habeas petition,
which the Court of Appeals granted on January 20, 2016. The
instant petition was filed on June 24, 2016, shortly after
the Supreme Court ruled in Welch v. United States,
136 S.Ct. 1257 (2016), that Johnson II is
retroactive to cases on collateral review.
petition argues that neither ABPO nor ABDW are crimes of
violence under the ACCA's “force clause, ”
which defines a crime of violence as one which “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). Specifically, he contends that
neither offense necessarily involves a “use” of
force, because each offense can be committed recklessly.
the uneven legal landscape created by the ACCA is no easy
task. To determine if an offense qualifies under the force
clause, a court must first determine whether an offense is
“indivisible” or “divisible.” This
inquiry requires scrutiny of the elements of a given offense.
Elements are the aspects of a crime that “the jury must
find beyond a reasonable doubt to convict the
defendant.” Mathis v. United States, 136 S.Ct.
2243, 2248 (2016). If a crime is defined by a single, unitary
set of elements, it is considered indivisible. Id.
If, however, a crime can be committed under alternative sets
of elements, effectively creating multiple crimes with the
same name, it is divisible. Id. at 2249.
divisibility inquiry is important because it shapes the scope
of the court's analysis. When faced with an indivisible
statute, the court may only look at the elements to determine
whether a defendant must necessarily have been convicted of a
crime satisfying the force clause. Id. at 2248. With
a divisible statute, however, the court may examine “a
limited class of documents . . . to determine what crime,
with what elements, a defendant was convicted of.”
Id. at 2249. These so-called Shepard
documents, see Shepard v. United States, 544 U.S. 13
(2005), include “the indictment, jury instructions, or
plea agreement and colloquy, ” Mathis, 136
S.Ct. at 2249.
contends that this inquiry is critical to resolving his case.
First, he argues that both ABDW and ABPO are indivisible
offenses, and therefore categorically overbroad because they
sweep in conduct that does not involve a “use” of
force. Second, he contends that even if these offenses are
divisible, one form of each offense fails to satisfy the
force clause because it requires only reckless, rather than
court will focus on the second argument, because Dancy admits
that First Circuit precedent effectively bars the first. In
United States v. Tavares, 843 F.3d 1, 13-18 (1st
Cir. 2016), the First Circuit concluded that Massachusetts
ABDW is a divisible offense. The reasoning of
Tavares also compels the conclusion that
Massachusetts ABPO is divisible. The central thesis of
Tavares is that because Massachusetts assault and
battery can be committed with two different states of mind
(either intentionally or recklessly), and the reckless form
(unlike the intentional form) requires a showing that the
victim was injured, it is divisible into two sets of
elements. 843 F.3d at 16-18. ABPO has the same structure: it
can be committed intentionally or recklessly, see
Commonwealth v. Beal, 474 Mass. 341, 352- 353 (2016),
and its reckless variant requires a showing of injury to the
victim, see Commonwealth v. Correia, 50 Mass.App.Ct.
455, 458-459 (2000).
the statutes are divisible, this case would have ended had
the government produced Shepard documents
demonstrating that Dancy was convicted of the intentional,
rather than reckless, form of ABDW and ABPO. No such
documents have been proffered, however, so the court must
turn to the question the First Circuit left open in
Tavares: whether “a conviction under the
reckless version of ABDW qualifies as a crime of
violence.” 843 F.3d at 19. The same question is raised
by the reckless form of ABPO.
stage of the analysis is, if possible, even more metaphysical
than the last. The abstruse nature of the inquiry is
underscored by the fact that there appears to be no binding
precedent interpreting the ACCA that is on point. Instead,
the court must engage in a haruspicy of cases interpreting
other statutes employing similar language.
lines of cases are relevant. The first interprets 18 U.S.C.
§ 16(a), which defines a “crime of violence”
as an offense that has as an element the “use . . . of
physical force against the person or property of
another.” In Leocal v. Ashcroft, 543 U.S. 1
(2004), the Supreme Court did not decide whether the word
“use” itself embodied a particular mens rea
requirement. Id. at 9. Instead, it stated that the
word “use” is “elastic, ” and that
therefore the term must be interpreted “in its context
and in light of the terms surrounding it.” Id.
The Court concluded that the critical phrase for this purpose
was “against the person or property of another.”
Id. In light of this phrase, the Court held, to
“use” force against another person or their
property “requires active employment, ” not
“negligent or merely accidental conduct.”
however, explicitly left open the question of whether
reckless conduct satisfies the “active
employment” test. Id. at 13. In the wake of
Leocal, the Courts of Appeals generally held that it
did not. See United States v. Fish, 758 F.3d 1,
9-10, 10 n.4 (1st Cir. 2014) (collecting cases); see also
United States v. McMurray, 653 F.3d 367, 374-375 (6th
Cir. 2011) (recklessness insufficient under the ACCA);
United States v. Lawrence, 627 F.3d 1281, 1284 &
n.3 (9th Cir. 2010) (same). Specifically, the First Circuit
held in Fish that ABDW did not qualify as a crime of
violence under a near-identical definition in § 16(b)
because its reckless form involves “force . . . brought
to bear accidentally, rather than being actively
employed.” Fish, 758 F.3d at 9.
Supreme Court's subsequent decision in Voisine v.
United States, 136 S.Ct. 2272 (2016), upset that settled
view. In Voisine, the Court held that a reckless
assault qualified as a “misdemeanor crime of domestic
violence” under 18 U.S.C. § 922(g)(9). Such
misdemeanors have a familiar definition: a qualifying offense
“has, as an element, the use or attempted use of
physical force.” Id. § 921(a)(33)(A)(ii).
The Court focused on the word “use, ” declaring
that it is “indifferent as to whether the actor has the
mental state of intention, knowledge, or recklessness with
respect to the harmful consequences of his volitional
conduct.” Voisine, 136 S.Ct. at 2279. Standing
alone, “use” merely connotes
“volitional” acts, as opposed to “an
involuntary motion.” Id. When a defendant