
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________          No. 96-1655                                   UNITED STATES,                                      Appellee,                                         v.                                  MARTIN FERNANDEZ,                               Defendant - Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. William G. Young, U.S. District Judge]                                ____________________                                       Before                           Cyr and Lynch, Circuit Judges,                           and McAuliffe, District Judge.                                _____________________               Miriam Conrad, Federal Defender Officer, for appellant.               Robert E. Richardson, Assistant United States Attorney, with          whom Donald                       K.                          Stern, United States Attorney, was on brief for          appellee.                                ____________________                                   August 6, 1997                                ____________________                                         Of the District of New Hampshire, sitting by designation.                    McAULIFFE,                               District Judge                                            . Martin Fernandez pled guilty          to an unarmed bank robbery charge in February of 1996.    See 18          U.S.C. S 2133(a). The district judge (Young, J.), confronted with          Fernandez' criminal history, found him to be a career offender and          sentenced him accordingly.  See U.S.S.G. S 4B1.1.                    On appeal Fernandez challenges his sentence, arguing that          he did not qualify as a career offender under the sentencing          guidelines. He says the district court's contrary finding was          legally incorrect for at least two reasons: (1) the district judge          erred when he concluded that the Massachusetts crime of assault and          battery on a police officer (one of Fernandez' predicate offenses)          is, categorically, a crime of violence within the meaning of          U.S.S.G. S 4B1.1; and (2) the district judge's alternate finding          (that the facts underlying Fernandez' offense establish it as a          crime of violence) was based on an impermissible judicial inquiry          into the discrete circumstances of his offense conduct.                    Because we conclude that the Massachusetts crime of          assault and battery on a police officer is, categorically, a crime          of violence within the meaning of U.S.S.G. S 4B1.1, we need not          address Fernandez' contention that the trial judge's factual          inquiry was inconsistent with the mandate of    Taylor v.  United          States, 495 U.S. 575 (1990), and we affirm the sentence.                                     Background                    Fernandez' career offender status rested on two          underlying state convictions: assault and battery by means of a          dangerous weapon and assault and battery upon a police officer.          Fernandez did not object to classification of the former as a          "crime of violence" within the meaning of U.S.S.G. S 4B1.1. He          did, however, object to consideration of his prior assault and          battery upon a police officer as a "crime of violence." The          district judge overruled Fernandez' objections, determined that he          was indeed a career offender, and sentenced him at the low end of          the applicable guideline range.                    On appeal, Fernandez argues that because, under          Massachusetts law, the crime of assault and battery upon a police          officer can include both violent and non-violent variants, the          district judge erred when he classified the offense as one of          violence within the meaning of the career offender provisions of          the guidelines. Fernandez' guideline sentencing range would have          been more favorable to him if the offense had not been so          classified.                                     Discussion                    Whether Fernandez' prior conviction for assaulting a          police officer is properly deemed a predicate "crime of violence"          under U.S.S.G. S 4B1.1 is a question of law, which we review   de          novo. See                     United States                                  v.                                      Winter, 22 F.3d 15, 18 (1st Cir. 1994).                    For purposes of the career offender provisions, the          sentencing guidelines define "crime of violence" as:               (1)  [A]ny offense under federal or state law                    punishable by imprisonment for a term                    exceeding one year that --                    (i) has as an element the use, attempted use,                    or threatened use of physical force against                    the person of another, or                    (ii) is burglary of a dwelling, arson, or                    extortion, involves use of explosives,     or                                         -3-                    otherwise                                involves                                          conduct                                                  that                                                        presents                                                                  a                    serious                             potential                                       risk                                            of                                               physical                                                        injury                                                                to                    another.          U.S.S.G. S 4B1.2 (November 1, 1995) (emphasis supplied). Some          offenses are easily recognized as crimes of violence because they          are specifically listed in the guideline (e.g., arson), or because          an essential element includes the use or threatened use of force          against another person (e.g., armed robbery).                    But an offense not listed, and which does not include          among its elements the use, attempted use, or threatened use of          force against another person, still might qualify under S 4B1.2 if          it involves conduct that "presents a serious potential risk of          physical injury to another." Whether such an offense qualifies on          that ground is determined according to a standard generic approach,          "in which inquiry is restricted to the statutory definition[] of          the prior offense[], without regard to the particular facts          underlying [it]."  United                                     States v. Meader, No. 96-2123, 1997 WL          375003, at *6 (1st Cir. July 11, 1997);  accord United                                                                  States v.          Schofield, 114 F.3d 350, 351 (1st Cir. 1997); Winter, 22 F.3d at          18;              cf.                  Taylor v.                            United States                                        , 495 U.S. 575, 600 (1990) (adopting          a similar categorical approach when determining whether a crime is          one of violence under the armed career criminal provisions of 18          U.S.C. S 924(e)(2)(B)(ii)).                    As this court has previously held:                    [R]ather than investigating the facts and                    circumstances of each earlier conviction, an                    inquiring court, in the usual situation, looks                    exclusively to the crime as the statute of                    conviction defined it; or, put another way,                    the court examines only the statutory                                         -4-                    formulation of the predicate crime in order to                    ascertain whether that crime is a crime of                    violence for purposes of the federal                    sentencing guidelines.          United                  States v. DeLuca, 17 F.3d 6, 8 (1st Cir. 1994) (footnote          omitted). Only under limited circumstances may a court look beyond          the elements of the crime as statutorily defined and examine          documents, such as charging papers or jury instructions, in an          effort to determine whether the predicate offense should count for          career offender purposes.   See Taylor, 495 U.S. at 602;   United          States v. DeJesus, 984 F.2d 21, 23 n.5 (1st Cir. 1993).                    Here, Fernandez argues that assault and battery on a          police officer should not be classified as a crime of violence          under S 4B1.1 because the criminal statute defining his offense          (Mass. Gen. L. ch. 265, S 13D) criminalizes both violent and non-          violent conduct. His point about the statute's scope finds support          in this court's opinion in United States v. Harris, 964 F.2d 1234          (1st Cir. 1992), where we noted: "The Massachusetts 'assault and          battery' statute covers two separate crimes -- one involving actual          (or potential) physical harm and the other involving a          'nonconsensual' but unharmful touching."  Id. at 1236.  Because                                         Under the Massachusetts criminal code, both simple assault and          battery (Mass. Gen. L. ch. 265, S 13A) and assault and battery upon          a police officer (Mass. Gen. L. ch. 265, S 13D) are specific intent          crimes.  Compare Commonwealth v. Chasson, 423 N.E.2d 306, 311 n.4          (Mass. 1981) ("A conviction of assault and battery requires a          finding of an intentional striking of the victim.")          with          Commonwealth v.                          Moore, 632 N.E.2d 1234, 1238 (Mass. App. Ct. 1994)          ("The offense of assault and battery on a police officer requires          a specific intent to strike a police officer."). The only          substantive distinction between the elements of those offenses is          that with regard to the latter, the defendant must know that the                                         -5-          both violent and non-violent conduct is covered by the statute, and          because his prior conviction could have been based on the non-          violent variant of assault and battery upon a police officer,          Fernandez says his prior offense should not have been counted in          deciding his career offender status.                    Although we have not directly addressed the precise issue          Fernandez raises, we have implied that assault and battery upon a          police officer, in violation of Mass. Gen. L. ch. 265, S 13D, is          properly considered a "crime of violence" for federal sentencing          guidelines purposes.  See United                                            States v. Santiago, 83 F.3d 20,          26-27 (1st Cir. 1996) (holding that although the defendant was          sentenced to less than one year in prison, his conviction for          assault and battery against a police officer constituted a          "predicate offense[] within the purview of the career offender          guideline."); United States v. Pratt, 913 F.2d 982, 993 (1st Cir.          1990) (holding that defendant's state misdemeanor convictions, two          of which were for assault and battery on a police officer,          constituted predicate "crimes of violence" under U.S.S.G.          S 4B1.1.); see also United States v. Tracy, 36 F.3d 187, 199 (1st          Cir. 1994) (holding that defendant had adequate notice of the          government's intention, for sentencing purposes, to rely upon his          state conviction for assault and battery upon a police officer and                                        victim is a police officer, acting in the course of his or her          official duties. Accordingly, for the purposes of this discussion,          we will assume that our reasoning in Harris, supra, applies with          equal force to the crime of assault and battery upon a police          officer and, therefore, that it is possible to commit that crime by          means of a nonconsensual, but unharmful touching of a police          officer.                                          -6-          concluding that the district court did not err in considering          defendant's conviction in enhancing his sentence under the Armed          Career Criminal Act.), cert. denied, 115 S. Ct. 1717 (1995).                    In any event, that Fernandez                                                might have been convicted of          the non-violent variety of assault and battery upon a police          officer (looking just at the record of conviction and the          Massachusetts statute) does not undermine our conclusion that the          crime is, for purposes of U.S.S.G. S 4B1.1, properly categorized as          a crime of violence. As we have said, the important point                    is not the breadth of the statutory sweep but                    the degree of risk, expressed in terms of the                    probability of physical harm presented by the                    mine-run of conduct that falls within the                    heartland of the statute. Applying this test                    in the post- Taylor era, we have repeatedly                    classified as crimes of violence offenses in                    which actual or threatened force against                    another person is likely, although by no means                    certain.          DeJesus, 984 F.2d at 24.                    It would seem self-evident that assault and battery upon          a police officer usually involves force against another, and so          meets that standard. At a minimum, assault and battery upon a          police officer requires purposeful and unwelcomed contact with a          person the defendant knows to be a law enforcement officer actually          engaged in the performance of official duties.                                                         See                                                             Commonwealth v.          Moore, 632 N.E.2d 1234, 1238 (Mass. App. Ct. 1994). While it is          true that neither violence, nor the use of force, is an essential          element of the crime as statutorily defined, still, violence, the          use of force, and a serious risk of physical harm are all likely to                                         -7-          accompany an assault and battery upon a police officer.      See,          e.g., Winter, 22 F.3d at 20 ("A categorical approach is not          concerned with testing either the outer limits of statutory          language or the myriad of possibilities girdled by that language;          instead, a categorical approach is concerned with the usual type of          conduct that the statute purports to proscribe.").                    Our conclusion is entirely consistent with our holding in          United                   States v.   Harris,  supra. While we acknowledge that          Massachusetts does criminalize both violent and non-violent          assaults upon police officers in the same criminal statute, we also          necessarily recognize that the conduct proscribed by the statute          nearly always involves the intentional striking of a police officer          while in the performance of official duty. This nearly always          poses a serious risk of actual or potential physical force and the                                         Recent Massachusetts cases in which the defendant was charged          with assault and battery upon a police officer reveal, not          surprisingly, the consistent involvement of physical force and risk          of injury. Each reported case involved actual (not merely          threatened) use of force by the defendant and a serious risk of          injury to the officer or another.  See Commonwealth v. Gogan, 449          N.E.2d 365 (Mass. 1983) (defendant resisted arrest, struggled with          officer, and fell to ground on top of officer);  Commonwealth v.          Gagnon, 643 N.E.2d 1045 (Mass. App. Ct. 1994) (defendant convicted          of masked armed robbery, assault with intent to murder, attempted          murder, and assault and battery upon a police officer), modified,          645 N.E.2d 696 (Mass. 1995);                                       Commonwealth v.                                                      Moore, 632 N.E.2d 1234          (Mass. App. Ct. 1994) (defendant grabbed officer's wrist and          dragged him along road with his vehicle);                                                    Commonwealth v.                                                                    Collins,          627 N.E.2d 941 (Mass. App. Ct. 1994) (defendant head-butted officer          in jaw); Commonwealth v. McCrohan, 610 N.E.2d 326 (Mass. App. Ct.          1993) (defendant initiated a violent struggle with two police          officers); Commonwealth v. Holmes, 609 N.E.2d 489 (Mass. App. Ct.          1993) (defendant struck officer with car door, knocking him to the          ground); Commonwealth v. Gonzalez, 500 N.E.2d 287 (Mass. App. Ct.          1986) (defendant struck officer).                                         -8-          likelihood of physical injury -- to the police officer initially,          and to the perpetrator (and even the public) subsequently, when the          officer reacts or attempts to subdue the offender. That law          enforcement officers usually carry weapons when on duty only          heightens the serious risk of injury associated with such an          assault.                    Accordingly, we hold that assault and battery upon a          police officer, in violation of Mass. Gen. L. ch. 265, S 13D, is          categorically a crime of violence within the meaning of the career          offender provisions of the sentencing guidelines, U.S.S.G. S 4B1.1,          notwithstanding that its statutory definition admits a non-violent          means of commission.                                     Conclusion                    For the foregoing reasons, we hold that an assault and          battery upon a police officer, in violation of Mass. Gen. L.          ch. 265, S 13D, is categorically a crime of violence under U.S.S.G.          S 4B1.1. Accordingly, the district judge's conclusion that          Fernandez is a career offender under the guidelines, and the          sentence imposed, are affirmed.                                         Of course, a defendant may, in an appropriate case, seek relief          under the guidelines by filing a departure motion if his or her          predicate offense actually involved the non-violent form of assault          and battery on a police officer. This, however, is not such a          case. Fernandez did not attempt to show that he actually committed          a non-violent form of assault and battery upon a police officer.          Instead, he has simply asserted that because the underlying state          statute criminalizes both violent and non-violent conduct alike,          that crime cannot, as a matter of law, constitute a "crime of          violence" for purposes of determining his career offender status          for federal sentencing purposes.                                         -9-
