             United States Court of Appeals
                        For the First Circuit


No. 07-2675

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                             PABLO RIVERA,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

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


                                Before

                  Boudin, John R. Gibson,* and Howard,
                            Circuit Judges.



     Martin J. Vogelbaum, with whom Charles P. McGinty and
Federal Defender Office, were on brief, for appellant.
     Mark T. Quinlivan, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.



                            March 30, 2009




*
    Of the Eighth Circuit, sitting by designation.
            HOWARD, Circuit Judge.      This case presents a recurring

issue:    whether, for purposes of sentencing a defendant under the

Armed Career Criminal Act (ACCA)1, the charging language "did

assault and beat" in a Massachusetts state court criminal complaint

establishes, in the absence of any other cognizable source of

information, that a defendant committed the type of assault and

battery under Massachusetts law that qualifies as a "violent

felony."     See United States v. Holloway, 499 F.3d 114, 118 (1st

Cir. 2007); see also id. at 116, 118 (recognizing that, under

Massachusetts law, assault and battery may be of two separate

types, "offensive" and "harmful" assault and battery, and that the

latter type qualifies as a violent felony under the ACCA).

            On four prior occasions we have determined that the "did

assault and beat" charging language suffices to identify the

"harmful" brand of assault and battery, qualifying the offense as

a violent felony under the ACCA or a "crime of violence" under the

career offender provision of the sentencing guidelines, U.S.S.G. §

4B1.1.     Holloway, 499 F.3d at 118; United States v. Estevez, 419

F.3d 77, 82 (1st Cir. 2005); United States v. Santos, 363 F.3d 19,

24 (1st Cir. 2004);       United States v. Mangos, 134 F.3d 460, 464

(1st Cir. 1998).2


1
    18 U.S.C. § 924(e).
2
  We have made clear that "the definitions of 'violent felony' in
the ACCA and 'crime of violence' in U.S.S.G. § 4B1.1 are
essentially the same, and that we may look to cases dealing with

                                  -2-
          On the basis of three prior Massachusetts assault and

battery convictions, the sentencing court in this case classified

the appellant, Pablo Rivera, as an armed career criminal under the

ACCA. The district court relied on "did assault and beat" charging

language in concluding that each of Rivera's three assault and

battery convictions was for the "harmful," violent type of assault

and battery.

          In a familiar argument, Rivera says that this charging

language is mere statutory boilerplate and thus fails sufficiently

to establish that he was convicted of the violent type of assault

and battery on those three prior occasions.   As the district court

recognized, we have rejected this precise argument on a number of

occasions, most recently in Holloway. Id. at 118; Santos, 419 F.3d

at 24.   Nevertheless, on appeal Rivera seeks to distinguish this

case from the previous ones.     He notes that, unlike the other

defendants, he presented to the district court affidavits from both

a current and retired clerk in the Massachusetts state court, each

of whom attested that the "did assault and beat" charging language

is used in all assault and battery cases regardless of which type

of assault and battery is being charged by the state.

          Whatever evidentiary value these affidavits might have

in the district court under other circumstances, Rivera's argument



either to inform our categorical inquiry."    Holloway, 499 F.3d at
188 (citations omitted).

                               -3-
to us is unavailing in light of binding precedent.                     Nothing in

those decisions appears to leave open the argument Rivera presents.

In fact, the opposite seems to be true.           See Santos, 363 F.3d at 19

("We do not agree with the Seventh Circuit's basic premise that

'boilerplate     language'     alleging    an   assault    and   battery    under

Massachusetts criminal law is insufficient to deem a subsequent

conviction a crime of violence under § 4B1.2.").             Moreover, Rivera

has failed to identify a fresh development in the law that would

allow us to disregard circuit precedent. See Holloway, 499 F.3d at

118.3

            To   be   sure,    classifying      Rivera's   three   assault     and

battery   convictions     as    violent    felonies    under     the    ACCA   has

significant sentencing consequences.4            But, if we choose to depart

from our previous position with respect to the charging language at

issue here, we must do so as an en banc court.

AFFIRMED.




3
  Further, as we did in Holloway, Santos, and Mangos, we note that
nothing in the record here suggests that any of Rivera's three
convictions were for the "offensive" type of assault and battery.
See Holloway, 499 F.3d at 118 n.5; Santos, 363 F.3d at 24; Mangos,
134 F.3d at 464.
4
 The classification of Rivera as an armed career criminal resulted
in a statutory mandatory minimum of 180 months to 210 months. The
district court sentenced Rivera to 180 months' imprisonment to be
followed by five years of supervised release.

                                     -4-
