

                 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

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          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

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          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.

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