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United States v. Dancy

United States District Court, D. Massachusetts

April 3, 2017

WILLIE DANCY Civil Action No. 16-11230-RGS



         Petitioner 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.

         In 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).[1] 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.

         Dancy's 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.

         Dancy's 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.

         Navigating 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.

         The 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.

         Dancy 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 intentional, conduct.

         The 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).

         Because 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.

         This 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.

         Two 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.”[2] 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.” Id.

         Leocal, 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.

         The 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 ...

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