          United States Court of Appeals
                        For the First Circuit


No. 09-2086

                      UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                            MATTHEW DAVIS,

                         Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Richard Stearns, U.S. District Judge]



                                Before

                          Lynch, Chief Judge,
                      Souter,* Associate Justice,
                       and Stahl, Circuit Judge.


     Paúl Camarena, by Appointment of the Court, for appellant.
     John A. Wortmann, Jr., Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, and Dina Michael
Chaitowitz, Assistant United States Attorney, were on brief, for
appellee.


                            April 12, 2012



     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
           STAHL, Circuit Judge. Defendant-appellant Matthew Davis

was sentenced as a career offender pursuant to § 4B1.1 of the

United States Sentencing Guidelines.         While Davis's appeal of his

sentence was pending, we decided two cases that affected which

types of Massachusetts convictions could be considered predicates

for career offender status under § 4B1.1.              See United States v.

McGhee, 651 F.3d 153 (1st Cir. 2011); United States v. Holloway,

630 F.3d 252 (1st Cir. 2011).         Regardless of these changes in the

law, however, Davis cannot meet the exigencies of the plain error

test in challenging his classification as a career offender, and we

therefore affirm.

                         I. Facts & Background

           We recite only the facts relevant to this sentencing

appeal.   On February 24, 2008, Davis, then nineteen years old, was

arrested on an outstanding warrant.           Upon searching Davis, the

Boston police found in his possession four bags containing small

amounts   of   cocaine   base   and   one   bag   of   marijuana.   He   was

subsequently charged with possession of cocaine base with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1), and with aiding

and abetting, in violation of 18 U.S.C. § 2, in the United States

District Court for the District of Massachusetts.              On April 9,

2009, after the district court denied his motion to suppress, Davis

pled guilty to the first count.       At the change of plea hearing, the

assistant United States attorney (AUSA) stated that Davis qualified


                                      -2-
as a career offender under the sentencing guidelines based on two

prior convictions for crimes of violence.      See U.S.S.G. § 4B1.1.

In its colloquy with Davis, the district court added the following:

           You heard reference to the Career Offender
           Guideline.     This is a guideline that
           automatically escalates, based on a person's
           prior conviction, a person's Criminal History
           Category to the highest, which is Category VI,
           and it typically results in a sentencing range
           like the one that [the AUSA] described, in the
           150-or-so-month area. This is not a mandatory
           minimum sentence, however.        This is an
           advisory recommendation to the Court.     So I
           still have to decide whether that is
           appropriate or excessive in your case when we
           actually get to sentencing in this matter. Do
           you feel you understand how the process is
           going to work?

Davis responded in the affirmative.      Davis did not object to the

characterization by the AUSA or by the court that he was a career

offender under § 4B1.1, and he did not contest the AUSA's assertion

that he had two prior convictions for crimes of violence.

           In the Presentence Report (PSR) dated July 2, 2009, the

probation officer summarized Davis's criminal history, including

juvenile   adjudications   for   resisting   arrest   and   assault   and

battery.   The PSR also detailed two adult convictions, both from

2006: one for assault and battery and a second for resisting

arrest. Each adult conviction contained a description of the crime

culled from a police report.        In its description of the 2006

assault and battery, the PSR stated that the "defendant struck the

other student above the left eye, tearing the skin and causing it


                                  -3-
to bleed heavily."           The PSR concluded that, because of the two

adult convictions, Davis met the prerequisites for career offender

status and that his criminal history category would therefore be

Category VI, rather than the Category V that would have been

established by his ten criminal history points. The PSR noted that

Davis had filed no objections to the report.

              Also on July 2, 2009, the government filed its sentencing

memorandum. In describing Davis's criminal history, the government

referred extensively to the PSR and to police reports detailing

Davis's past conduct.         The government attached the relevant police

reports, as well as various affidavits and news articles.                   It did

not, notably, attach copies of Davis's various convictions or any

other equivalent materials demonstrating the outcome or character

of the charges brought against him.              The government's memorandum

asserted that the probation office had correctly determined that

Davis was a career offender under the sentencing guidelines based

on   having    been   twice    convicted    of   crimes   of    violence.      The

government argued for a sentence of 96 months, rather than the

guidelines' advisory recommendation of 151-188 months for a career

offender      in   Davis's    position,    due   to   Davis's   youth   and   the

relatively non-serious nature of the predicate offenses.                On July

7, 2009, Davis filed a sealed motion for downward departure, in

which he made no objection to his classification as a career




                                      -4-
offender or to the PSR's characterization of his adult convictions.

Davis argued that 38 months would be a reasonable sentence.

             At the sentencing hearing, which took place on July 9,

2009, the district court recognized that "because of the operation

of the career offender provision," Davis's advisory sentence for

"what would have been a small drug offense" ballooned to 151-188

months.1     The government again characterized Davis as a career

offender and emphasized his juvenile record and gang involvement,

while continuing to recommend a sentence of 96 months.             Davis did

not contest the government's characterization of his record and

maintained his request for a sentence of 38 months.              The district

court,     implicitly   classifying    Davis   as   a   career   offender   by

recognizing the 151-month advisory sentence as a starting point,

ultimately sentenced Davis to 84 months' imprisonment.                In the

statement of reasons attached to the judgment, dated August 3,

2009, the district court adopted the PSR without change.                Davis

timely appealed his sentence.2


     1
       On appeal, Davis asserts that his recommended sentencing
range would have been 21-27 months without the career offender
classification.
     2
       We briefly note the developments in this case once it
reached this court. Davis's case was docketed in August 2009. On
December 15, 2009, the court appointed appellate counsel. On July
12, 2010, Davis's counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967), seeking to withdraw because
he "could not discern a non-frivolous basis for appeal."        On
February 3, 2011, this court denied the motion to withdraw, citing
our January 21, 2011 decision in United States v. Holloway, 630
F.3d 252, 262 (1st Cir. 2011) (holding that Massachusetts assault

                                      -5-
                          II. Discussion

          Davis's appeal centers around the use by the district

court of the career offender provision of the United States

Sentencing Guidelines.   See U.S.S.G. § 4B1.1.   Under § 4B1.1, a

defendant is considered a career offender if:

          (1) the defendant was at least eighteen years
          old at the time the defendant committed the
          instant offense of conviction; (2) the instant
          offense of conviction is a felony that is
          either a crime of violence or a controlled
          substance offense; and (3) the defendant has
          at least two prior felony convictions of
          either a crime of violence or a controlled
          substance offense.

Id. § 4B1.1(a).    Once a defendant is classified as a career

offender under § 4B1.1(a), his "criminal history category in every

case" is elevated to the highest category, Category VI.        Id.

§ 4B1.1(b).

          Davis's claim on appeal is that he was sentenced as a

career offender under § 4B1.1 in error.    Considering him to be a

career offender, the district court calculated Davis's advisory

sentencing range as 151-188 months, though it ultimately imposed a


and battery does not categorically qualify as a career offender
predicate), and ordered further briefing on the implications of
that case. On April 19, 2011, still discerning no proper basis for
appeal, Davis's counsel filed a second Anders brief in support of
his motion to withdraw. On June 29, 2011, we again denied his
motion, based in part on our June 22, 2011 decision in United
States v. McGhee, 651 F.3d 153, 158 (1st Cir. 2011) (holding that
Massachusetts youthful offender violations do not qualify as career
offender predicates). In that order, we explicitly directed Davis
to address whether his Holloway claim could overcome the plain
error standard.

                               -6-
sentence of 84 months; Davis claims that without the career

offender classification, the advisory range would have been 21-27

months.   There is no dispute that Davis satisfied the first two

elements of § 4B1.1; Davis was nineteen years old at the time of

his   arrest,    and    possession      of    cocaine   base   with   intent    to

distribute is clearly a controlled substance offense.                 Therefore,

the only issue before us is whether the third element was met, that

is, whether Davis had two predicate felony convictions for crimes

of violence or controlled substance offenses.

           First, nothing in Davis's juvenile record qualifies as a

career offender predicate, as Massachusetts does not consider

youthful offender determinations to be adult convictions.                      See

United States v. McGhee, 651 F.3d 153, 158 (1st Cir. 2011).                  On the

other   hand,   it     is   just   as   evident    that   Davis's     2006   adult

conviction for resisting arrest serves as a predicate offense.                  We

have previously held that a Massachusetts conviction for resisting

arrest categorically qualifies as a crime of violence for purposes

of § 4B1.1.     See United States v. Almenas, 553 F.3d 27, 33-34 (1st

Cir. 2009); see also United States v. Weekes, 611 F.3d 68, 72-73

(1st Cir. 2010) (holding that a Massachusetts conviction for

resisting arrest qualifies as a predicate conviction under the

Armed Career Criminal Act, 18 U.S.C. § 924(e)). Davis's 2006 adult

conviction for resisting arrest falls squarely within the category




                                        -7-
of crimes of violence that may serve as predicate offenses for

purposes of career offender status.

             The only item left in Davis's criminal history which

could act as a qualifier for career offender status is his 2006

adult conviction for assault and battery.                Whether this conviction

may    serve      as    his    second     predicate     offense    merits   careful

consideration due to recent changes in our circuit precedent.

             To     determine       whether      a   defendant's   prior    offense

qualifies as a crime of violence under § 4B1.1, a sentencing court

must employ a categorical approach, examining the legal definition

of    the   crime      and    not   the   defendant's    particular    conduct   in

committing the offense. Holloway, 630 F.3d at 256 (citing Begay v.

United States, 553 U.S. 137, 141 (2008)).3

             The first step in undertaking the categorical approach is

to identify the offense of conviction.                 Id. (citing United States



       3
       While Holloway and Begay analyze the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e), and this case involves the career
offender provision under U.S.S.G. § 4B1.1, we use the same
framework to undertake our analysis. "[T]he circumstances under
which a Massachusetts simple assault and battery conviction will
qualify as a predicate conviction for a 'crime of violence' under
the career offender provision of the U.S. Sentencing Guidelines"
and the circumstances when such a conviction will qualify as a
"violent felony" under the ACCA are "nearly identical," and
"[b]ecause of this, 'decisions construing one term inform the
construction of the other.'"      Holloway, 630 F.3d at 254 n.1
(quoting United States v. Willings, 588 F.3d 56, 58 n.2 (1st Cir.
2009)); see also United States v. Bryant, 571 F.3d 147, 154 n.2
(1st Cir. 2009) (citing United States v. Giggey, 551 F.3d 27, 38
(1st Cir. 2008)) (noting that the categorical approach is generally
applicable to career offender guideline cases).

                                           -8-
v. Giggey, 589 F.3d 38, 41 (1st Cir. 2009)).       Where the crime of

conviction covers multiple offenses, some of which are considered

crimes of violence and some of which are not, a court must examine

certain approved documents to determine the offense of which the

defendant was actually convicted.       Id. at 257 (citing Shepard v.

United States, 544 U.S. 13, 26 (2005)).      A court may look to "the

terms of the charging document, the terms of a plea agreement or

transcript of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the defendant, or to

some comparable judicial record of this information." Shepard, 544

U.S. at 26.    A court may not, however, rely on police reports.   Id.

at 21-23.     If, after examination of these permissible documents,

"it is impossible to tell whether the defendant was convicted of a

violent or non-violent offense," the conviction may not serve as a

predicate offense.    Holloway, 630 F.3d at 257.

             Here, Davis was convicted of assault and battery under

Mass. Gen. Laws ch. 265, § 13A, which covers multiple offenses:

"(1) harmful battery; (2) offensive battery; and (3) reckless

battery."4     Id. (citing Commonwealth v. Boyd, 897 N.E.2d 71, 76

(Mass. App. Ct. 2008)).     At the time of Davis's sentencing, the

boilerplate charging language for a Massachusetts assault and



     4
        The three types of assault and battery are defined not by
the statute but by Massachusetts common law. Holloway, 630 F.3d at
257 n.4 (citing United States v. Mangos, 134 F.3d 460, 463 (1st
Cir. 1998)).

                                  -9-
battery conviction ("did assault and beat") was sufficient to show

that the conviction was for a crime of violence.         See id.   However,

we recently determined that reckless battery is not a crime of

violence.    Id. at 261-62.      Harmful battery, on the other hand,

requires that "the defendant intentionally touched the victim with

such violence that bodily harm [wa]s likely to result," id. at 259

n.5 (quoting Commonwealth v. Burke, 457 N.E.2d 622, 624 (Mass.

1983)) (internal quotation marks omitted), and is still considered

a predicate offense for career offender status, id. at 257 (citing

United States v. Rivera, 562 F.3d 1, 1 (1st Cir. 2009)).                Thus,

post-Holloway, a court must determine from the Shepard-approved

documents in the record whether the type of assault and battery for

which a defendant was convicted qualifies as a predicate offense

for career offender status.      See id. at 262.

            Unavailable in this record are "the terms of the charging

document [or] the terms of a plea agreement or transcript of

colloquy between judge and defendant in which the factual basis for

the plea was confirmed by the defendant." Shepard, 544 U.S. at 26.

A court may, however, look into the character of an offense based

on "some comparable judicial record."          Id.      The only evidence

offered before the district court describing the particulars of the

2006   assault   and   battery   was   the   relevant    section   of    the

uncontested PSR; the PSR's summary, based on a police report,

stated that Davis had "struck the other student above the left eye,


                                  -10-
tearing the skin and causing it to bleed heavily."                     We are left

then to contemplate whether it was proper for the district court to

conclude that Davis was a career offender in reliance on the

characterization of the assault and battery contained in the

uncontested PSR.5

            While we would review de novo a preserved claim regarding

the conclusion as to whether a prior conviction could serve as a

career offender predicate, Holloway, 630 F.3d at 256, where, as

here, a defendant fails to object to the characterization of that

offense,    our    review   is   for    plain        error,   United    States     v.

Torres-Rosario, 658 F.3d 110, 115-16 (1st Cir. 2011).                     Where a

defendant has not raised a claim before the sentencing court but

when the law has changed between the time of sentencing and the

time of appeal, we still review for plain error.                United States v.

Dancy,     640    F.3d   455,    464-65       (1st     Cir.   2011);    see      also

Torres-Rosario, 658 F.3d at 116 (holding that career offender

status premised on a conviction of assault and battery under

Massachusetts law, conceded at sentencing, could be reviewed for

plain error in light of our intervening decision in Holloway).                    We

therefore examine the district court's determination that Davis

qualified as a career offender under § 4B1.1 for plain error,


     5
       The description in the PSR, if taken at face value, would
almost certainly be sufficient to show that Davis "intentionally
touched the victim with such violence that bodily harm [wa]s likely
to result," Holloway, 630 F.3d 259 n.5 (internal quotation marks
omitted), thus meeting the requirements for harmful battery.

                                       -11-
meaning that Davis must show "error, plainness, prejudice to the

defendant    and   the    threat    of   a    miscarriage   of   justice."

Torres-Rosario, 658 F.3d at 116.

            After Holloway, "treating a Massachusetts assault and

battery   conviction     as   a   [career    offender]   predicate,   without

further evidence of violence, is now plain error."               Id. at 116

(emphasis added).        But because the description in the PSR might

constitute such further evidence,            this case does not neatly fall

within the plain error standards we set in Torres-Rosario.6

However, we need not decide whether there was plain error here


     6
       We have never squarely addressed whether reliance on a PSR
under these circumstances is proper. Davis did not object to the
PSR's characterization of the 2006 assault and battery offense.
While police reports themselves are not permissible Shepard
materials, we have previously indicated in dicta that we would
approve of the use of a PSR's summary of police reports to support
the characterization of a predicate offense when the defendant did
not object to the PSR. See United States v. Jimenez, 512 F.3d 1,
7 (1st Cir. 2007) ("Where, as here, the characterization of an
offense contained in a presentence report is not disputed before
the sentencing court, the report itself is competent evidence of
the fact stated and, thus, is sufficient proof of that fact.").
Further, in cases involving concessions by a defendant to a
characterization of a predicate offense (as opposed to a mere
failure to object, as we have here), we have found no plain error.
See United States v. Ríos-Hernández, 645 F.3d 456, 463 (1st Cir.
2011) ("Given this apparent acquiescence to the characterization of
the prior convictions as crimes of violence and the lack of
objection to the court's reliance on the PSI as a source of
information about the nature of the prior convictions, we cannot
say that it would have been clear and obvious to the district court
that it should have conducted the categorical approach and possibly
probed further into the record of conviction."); United States v.
Mastera, 435 F.3d 56, 61-62 (1st Cir. 2006) (error was not "clear
or obvious at the time of appellate consideration" where defendant
conceded to specific character of career offender predicate in
sentencing memorandum).

                                     -12-
under the first and second prongs of the test, because Davis surely

fails       to    meet   the    third     prong.    See     United     States     v.

Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 2006) ("[A] party

asserting plain error must carry the devoir of persuasion as to all

four elements of the formulation.").

                 The prejudice prong of the plain error test requires that

a defendant show that the plain error affected his substantial

rights, meaning that the error was prejudicial and "affected the

outcome of the district court proceedings."                 Id. (quoting United

States v. Olano, 507 U.S. 725, 734 (1993)).                 In the context of a

sentencing         appeal,     it    is   a   defendant's     burden    to      show

"circumstances indicating a reasonable probability that, but for

the error, the district court would have imposed a different, more

favorable sentence."           Id.   Here, Davis has made no argument that

the assault and battery was anything other than the harmful type,

doing nothing, even on appeal, to question the description provided

in the PSR or to argue that appropriate Shepard materials would

prove that he committed a non-harmful battery.7                 Therefore, his

burden of persuasion is not met, and regardless of whether there

was plain error, Davis cannot overcome the prejudice prong of the


        7
       In our order of June 29, 2011, we directed Davis to address
the plain error standard. His counsel failed to do so. However,
when questioned at oral argument regarding any potential prejudice
to Davis based on the district court's failure to undertake the
categorical approach or to examine the character of Davis's 2006
assault and battery conviction, Davis's counsel could not point to
any.

                                          -13-
plain error test.   See id. at 40 ("With no articulation, let alone

substantiation, of what the record of conviction might reveal,

there is no way for the appellant to show a reasonable probability

that he would be better off from a sentencing standpoint had the

district court not committed the claimed Shepard error.").      Davis

has not shown a reasonable probability that, absent any alleged

Shepard error, the district court would not have been able to use

the career offender guideline as a starting point from which to

calculate his sentence.   We therefore end our analysis here.

                          III. Conclusion

          Because Davis cannot overcome the requirements of plain

error review, we affirm the district court.




                                -14-
