          United States Court of Appeals
                        For the First Circuit


No. 16-1949

                      UNITED STATES OF AMERICA,

                              Appellant,

                                  v.

                           TRAVIS WINDLEY,

                         Defendant, Appellee.


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

              [Hon. Patti B. Saris, U.S. District Judge]


                                Before

                    Torruella, Lynch, and Kayatta,
                            Circuit Judges.


     Mark T. Quinlivan, Assistant U.S. Attorney, with whom William
D. Weinreb, Acting U.S. Attorney, was on brief, for appellant.
     Daniel N. Marx, with whom Fick & Marx LLP was on brief, for
appellee.


                            July 21, 2017
           PER CURIAM. After Travis Windley pleaded guilty to being

a felon in possession of a firearm under 18 U.S.C. § 922(g)(1),

the   district     court    sentenced     him   to   ninety-six     months'

imprisonment, over the government's objection.           The sole issue

raised in this ensuing appeal by the government is whether the

district   court    erred    in   determining    that   Windley's     prior

convictions in Massachusetts state court for assault and battery

with a dangerous weapon (ABDW) were not convictions for a "violent

felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e)(2)(B).    That determination makes a difference because two

of Windley's other convictions do qualify as violent felonies under

ACCA1; hence, even one more conviction for a violent felony would

have triggered a fifteen-year mandatory minimum sentence.               Id.

§ 924(e)(1).     In light of our recent opinion in Bennett v. United

States, No. 16-2039, slip op. at 54 (1st Cir. July 5, 2017),2 we

affirm.


      1 Both convictions were for Massachusetts assault with a
dangerous weapon. See United States v. Whindleton, 797 F.3d 105,
116 (1st Cir. 2015), cert. dismissed, 137 S. Ct. 23 (2016), and
cert. denied, 137 S. Ct. 179 (2016).
     2   We recognize that questions have recently arisen as to
whether the opinion in Bennett should be withdrawn in light of the
death of the petitioner in that case. See Motion for Withdrawal
of Court's Opinion, Bennett v. United States, No. 16-2039 (1st
Cir. July 13, 2017).     Nevertheless, we cite the opinion here
because this panel, after careful consideration, reached the same
conclusion about whether reckless offenses qualify as violent
felonies under the force clause. Thus, by citing Bennett, we not
only follow precedent that is currently binding but also endorse
and adopt its reasoning as our own.


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            Massachusetts ABDW comes in two forms:           an intentional

form and a reckless form.       See United States v. Tavares, 843 F.3d

1, 12 (1st Cir. 2016), reh'g denied, 849 F.3d 529 (1st Cir. 2017).

The parties tell us that Shepard documents relating to Windley's

ABDW convictions no longer exist, so those convictions qualify as

convictions for violent felonies only if both the intentional and

the reckless forms of ABDW are violent felonies, see United States

v. Faust, 853 F.3d 39, 51–53 (1st Cir. 2017) (citing, inter alia,

Shepard v. United States, 544 U.S. 13 (2005)).           In the wake of the

Supreme     Court's   ruling     that     ACCA's     residual   clause   is

unconstitutionally vague, Johnson v. United States, 135 S. Ct.

2551, 2557 (2015), we limit our inquiry to ACCA's so-called "force

clause," which defines as a violent felony any crime that "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).

We   have   already   held     that    intentional    ABDW   satisfies   the

identically worded force clause in the definition of a "crime of

violence" in the sentencing guidelines.            See Tavares, 843 F.3d at

12–13.    Nevertheless, if reckless ABDW is not a violent felony, we

cannot conclude that Windley was convicted of a violent felony.

So framed, the pivotal question is whether Massachusetts reckless

ABDW, given its mens rea requirement, has as an element the

"use . . . of physical force against the person of another."             18

U.S.C. § 924(e)(2)(B)(i).


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           Bennett   held   that   the     Maine   offense   of   aggravated

assault does not satisfy the force clause because it can be

committed with a mens rea of recklessness.           Bennett, slip op. at

7–8, 54.   Under the Maine criminal code, which is based on the

Model Penal Code, a person behaves recklessly when that person

"consciously disregards a risk that the person's conduct will

cause" a result that is an element of the crime.             Me. Stat. tit.

17–A, § 35(3)(A); see Bennett, slip op. at 7–8.          A conviction for

aggravated assault in Maine, therefore, only requires proof that

the defendant consciously disregarded a risk of causing bodily

injury.3   See Me. Stat. tit. 17–A, §§ 35(3)(A), 208; see also

Bennett, slip op. at 13.      In Bennett, we reasoned that there is

grievous ambiguity as to whether the "use . . . of physical force

against the person of another" includes the reckless version of

Maine aggravated assault, and that the rule of lenity therefore

required us to conclude that it does not.          Bennett, slip op. at 3–

4, 40–42, 52–54.

           The mens rea required for Massachusetts reckless ABDW

provides no better fit with ACCA's requirement that force be used




     3 At the time of the petitioner in Bennett's conviction, the
crime came in three different forms: "intentionally, knowingly,
or recklessly caus[ing]: A. Serious bodily injury to another; or
B. Bodily injury to another with use of a dangerous weapon; or C.
Bodily injury to another under circumstances manifesting extreme
indifference to the value of human life." Bennett, slip op. at 7
(quoting Me. Rev. Stat. Ann. tit. 17-A, § 208 (1981)).


                                   - 4 -
against the person of another.            Cf. United States v. Fish, 758

F.3d 1, 9–10 (1st Cir. 2014). While a conviction for Massachusetts

ABDW   requires   that     the   wanton   or   reckless   act   be   committed

intentionally, Commonwealth v. Burno, 487 N.E.2d 1366, 1368–69

(Mass. 1986), it does not require that the defendant intend to

cause injury, see Commonwealth v. Welansky, 55 N.E.2d 902, 910–12

(Mass. 1944); Commonwealth v. Correia, 737 N.E.2d 1264, 1266–67

(Mass. App. Ct. 2000); see also Fish, 758 F.3d at 10, or even be

aware of the risk of serious injury that any reasonable person

would perceive, see Welansky, 55 N.E.2d at 910; Commonwealth v.

Hall, No. 13-P-0021, 2014 WL 1235920, at *1 & n.1 (Mass. App. Ct.

Mar. 27, 2014) (unpublished disposition); Commonwealth v. Cadoff,

No. 00-P-0218, 2002 WL 407972, at *1 (Mass. App. Ct. Mar. 15, 2002)

(unpublished disposition); see also Bennett, slip op. at 26 n.10.

Like Maine's aggravated assault offense, see, e.g., State v.

Martin, 916 A.2d 961, 965 (Me. 2007); State v. Pineo, 798 A.2d

1093, 1097–98 (Me. 2002), reckless driving that results in a non-

trifling injury has led to convictions for Massachusetts reckless

ABDW, see, e.g., Commonwealth v. Green, No. 02-P-0678, 2003 WL

22399532 at *1, *3-4 (Mass. App. Ct. Oct. 21, 2003) (unpublished

disposition); Cadoff, 2002 WL 407972, at *1; Commonwealth v.

Subenko, No. 99-P-1404, 2001 WL 1473887, at *1, *4 (Mass. App. Ct.

Nov. 20, 2001) (unpublished disposition); see also Commonwealth v.

Sostilio,   89    N.E.2d    510,   511–12      (Mass.   1949)   (upholding   a


                                    - 5 -
conviction for reckless manslaughter, which has the same mens rea

requirement as reckless ABDW, in a reckless driving case).            These

are the types of cases that give rise to grievous ambiguity as to

whether the use of physical force against the person of another

includes the reckless causation of bodily injury.           See Bennett,

slip   op.   at   40-43.   Thus,   following   and   adopting   the   sound

reasoning of Bennett, we conclude that Massachusetts reckless ABDW

is not a violent felony under the force clause.

             For the foregoing reasons, we affirm Windley's sentence.




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