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14-P-753                                             Appeals Court

              COMMONWEALTH     vs.   DOMINIC REZENDES.


                             No. 14-P-753.

        Plymouth.       May 11, 2015. - September 17, 2015.

             Present:    Cypher, Meade, & Massing, JJ.


Firearms. Assault and Battery by Means of a Dangerous Weapon.
     Practice, Criminal, Prior conviction, Sentence. Delinquent
     Child. Words, "Violent crime," "Deadly weapon."



     Indictments found and returned in the Superior Court
Department on February 18, 2011.

    The cases were tried before Merita A. Hopkins, J.


     James A. Reidy for the defendant.
     Jessica Heaton, Assistant District Attorney, for the
Commonwealth.


    CYPHER, J.      This case requires us to consider the meaning

of "violent crime" as used in the Massachusetts Armed Career

Criminal Act (Massachusetts ACCA or statute), G. L. c. 269,

§ 10G, inserted by St. 1998, c. 180, § 71.     Specifically, we

must interpret the term "deadly weapon," as used in the
                                                                    2


definition of violent crime in G. L. c. 140, § 121, as amended

by St. 1998, c. 180, § 8.    The defendant, Dominic Rezendes,

appeals from a conviction under § 10G(c) of the Massachusetts

ACCA, which was based, in part, on a juvenile adjudication for

assault and battery by means of a dangerous weapon (a pen).

     We first conclude that the term "deadly weapon" in this

context is distinct from the term "dangerous weapon" as applied

in our common law.    We further hold that for the purposes of

conviction under G. L. c. 269, § 10G, a deadly weapon is a

weapon that is inherently deadly, and therefore conclude that a

pen is not a deadly weapon under this statute.    Accordingly,

under these circumstances, the defendant's juvenile adjudication

for assault and battery by means of a dangerous weapon could not

have formed the basis for a conviction under the Massachusetts

ACCA.   We reverse the defendant's conviction under G. L. c. 269,

§ 10G(c), and remand for resentencing under G. L. c. 269,

§ 10G(b).

     Background.    In July, 2013, a jury convicted the defendant

on two indictments charging assault and battery by means of a

dangerous weapon and three indictments involving weapons

charges:    unlawful possession of a firearm, in violation of

G. L. c. 269, § 10(a); unlawful discharge of a firearm within

500 feet of a building, in violation of G. L. c. 269, § 12E; and

unlawful possession of a loaded firearm, in violation of G. L.
                                                                   3


c. 269, § 10(n).1   The indictment charging unlawful possession of

a firearm carried an additional count of being an armed career

criminal2 under the Massachusetts ACCA, based on two prior

convictions and an adjudication of delinquency for assault and

battery.   Following a jury-waived trial on this count of the

indictment, the judge concluded that the defendant had committed

three predicate offenses and found him guilty of being an armed

career criminal.3

     The three predicate offenses included an adjudication as

delinquent for assault and battery by means of a dangerous

weapon (a pen) from when the defendant was sixteen years old, as

well as guilty pleas as an adult to charges of assault and


     1
       The defendant does not challenge these convictions, and
the facts associated with these convictions are not relevant to
his appeal.
     2
       "The term 'armed career criminal' derives from the Federal
Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (2006),"
Commonwealth v. Anderson, 461 Mass. 616, 626 n.10 (2012), but it
also is used consistently in reference to the Massachusetts
ACCA.
     3
       Consistent with the mandatory minimum sentencing
guideline, the judge sentenced the defendant to from fifteen to
sixteen years in State prison for carrying a firearm with three
predicate offenses under the Massachusetts ACCA. She then
sentenced him to from nine and one-half to ten years in State
prison for each of the assault and battery by means of a
dangerous weapon charges and three months in the house of
correction for the firearm discharge conviction, all of them to
run concurrently with the armed career criminal sentence.
Lastly, the judge sentenced him to one day in the house of
correction for the possession of a loaded firearm charge to be
served from and after his armed career criminal sentence.
                                                                    4


battery and assault and battery by means of a dangerous weapon.

The juvenile adjudication involved an altercation at a juvenile

detention facility in which the defendant was seen "gouging at

the victim" with a pen.

     Discussion.   The Massachusetts ACCA provides for enhanced

penalties for the unlawful possession of a firearm by

individuals who have been previously convicted of violent

crimes, as defined in G. L. c. 140, § 121.4   For the purposes of

the statute, the Legislature defined violent crime as follows:

     "any crime punishable by imprisonment for a term exceeding
     one year, or any act of juvenile delinquency involving the
     use or possession of a deadly weapon that would be
     punishable by imprisonment for such term if committed by an
     adult, that: (i) has as an element the use, attempted use
     or threatened use of physical force or a deadly weapon
     against the person of another; (ii) is burglary, extortion,
     arson or kidnapping; (iii) involves the use of explosives;
     or (iv) otherwise involves conduct that presents a serious
     risk of physical injury to another" (emphasis supplied).

G. L. c. 140, § 121.

     The defendant argues that because his prior juvenile

adjudication for assault and battery by means of a dangerous

weapon did not involve a deadly weapon, it was not a violent

crime under the Massachusetts ACCA, and, therefore, could not


     4
       The statute also applies to individuals with prior
convictions of serious drug offenses, as defined in G. L.
c. 269, § 10G(e), or some combination of violent crimes and
serious drug offenses. The statute requires the imposition of
mandatory minimum sentences of increasing severity for
individuals with one, two, or three qualifying convictions or
adjudications.
                                                                   5


qualify as a predicate offense to support a conviction as an

armed career criminal under G. L. c. 269, § 10G(c).      Because

this is a question of law, we conduct an independent review.

See Commonwealth v. Rogers, 444 Mass. 234, 235 n.2 (2005).

     It is undisputed that, if committed by an adult, an assault

and battery by means of a dangerous weapon would be punishable

by imprisonment for a term exceeding one year and thus would

constitute a violent crime under the Massachusetts ACCA.

However, when committed by a juvenile, an act may be used to

enhance a firearm sentence only when it "involv[ed] the use or

possession of a deadly weapon."   G. L. c. 140, § 121.    See

Commonwealth v. Anderson, 461 Mass. 616, 628-629 (2012).

Therefore, the defendant's appeal hinges on whether there is a

distinction between the term "deadly weapon," as used in this

definition of violent crime, and "dangerous weapon," as that

term is defined under our common law.

     1.   Legal significance of the term "deadly weapon."

Because the Legislature did not define "deadly weapon" in § 121,5


     5
       By the explicit terms of G. L. c. 140, § 121, its
definitions do not apply to other terms defined within that
section itself, so no other language in the section informs the
meaning of the term "deadly weapon." See Commonwealth v.
Foreman, 63 Mass. App. Ct. 801, 803 (2005). Furthermore, the
Legislature has not defined "deadly weapon" elsewhere in the
General Laws. In addition to its use in G. L. c. 140, § 121,
the term "deadly weapon" appears only three other times in the
General Laws, none of which provide guidance on the
Legislature's intended meaning of the term in the context at
                                                                   6


we apply well-established principles of statutory construction

to determine its meaning.    The Commonwealth argues that the

Legislature intended "deadly weapon" to be interpreted as

synonymous with the term "dangerous weapon" as used in our

common law.   We disagree.

    In general, "a statute is to be interpreted 'according to

the intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated.'"   Commonwealth v. Welch, 444 Mass. 80, 85

(2005), quoting from Commonwealth v. Galvin, 388 Mass. 326, 328

(1983).   To interpret the term "deadly weapon" as

interchangeable with the term "dangerous weapon" in this context

would be inconsistent with the ordinary usage of the terms, the

intent of the Legislature, and the language of the Federal

analog, on which the Massachusetts ACCA was modeled.

    a.    Plain meaning.   We begin of course "with the language

of the statute itself and 'presume, as we must, that the

Legislature intended what the words of the statute say.'"



issue here. See G. L. c. 209A, § 6; G. L. c. 258E, § 8; and
G. L. c. 127, § 133E. Likewise, the Legislature has not defined
"dangerous weapon" in the General Laws. See Commonwealth v.
Wynton W., 459 Mass. 745, 747 (2011).
                                                                      7


Commonwealth v. Williamson, 462 Mass. 676, 679 (2012), quoting

from Commonwealth v. Young, 453 Mass. 707, 713 (2009).       Here,

had the Legislature intended for the Massachusetts ACCA to apply

to all juvenile adjudications involving dangerous weapons, it

could have used the term "dangerous weapon" rather than "deadly

weapon."

    Furthermore, "[w]here the language of a statute is plain,

it must be interpreted in accordance with the usual and natural

meaning of the words."   Commonwealth v. Kerns, 449 Mass. 641,

651 (2007) (quotation omitted).    See G. L. c. 4, § 6, third par.

("Words and phrases shall be construed according to the common

and approved usage of the language; but technical words and

phrases and such others as may have acquired a peculiar and

appropriate meaning in law shall be construed and understood

according to such meaning").     Contrary to the Commonwealth's

argument, the words "deadly" and "dangerous" do not have the

same meaning under ordinary usage.     Webster's Third New

International Dictionary 580 (2002) (Webster's) defines "deadly"

as "tending to produce death."     Notably, it identifies "mortal,"

"lethal," "fatal," and "deathly" as synonyms of deadly, but does

not include dangerous on this list.     In contrast, Webster's

defines "dangerous" as "able or likely to inflict injury;

causing or threatening harm."     Id. at 573.
                                                                     8


    These definitions make clear that "deadly" has both a

stronger and narrower meaning than "dangerous."    "Deadly"

connotes an inevitability of death, or at least a higher

certainty of death than does "dangerous."     In other words, what

is deadly is patently also dangerous, but it does not follow

that what is dangerous is necessarily deadly.

    Our conclusion is bolstered by the additional and similar

principle of statutory construction that requires us to presume

that the Legislature was well aware of the use of the term

"dangerous weapon" in our statutes and the meaning attributed to

that term in our decades of decisional law.    See generally

Commonwealth v. Russ R., 433 Mass. 515, 520 (2001) ("Legislature

is presumed to be aware of existing statutes when it . . .

enacts a new one"); Commonwealth v. Garcia, 82 Mass. App. Ct.

239, 244 (2012).   Together, our decisional and statutory law

outlines an expansive description of what may constitute a

dangerous weapon, and that description may well draw within its

purview weapons that may be dangerous, but not deadly.    See

generally Commonwealth v. Appleby, 380 Mass. 296, 303-304

(1980).

    This historical background, in addition to the plain

statutory language, suggests that the Legislature intended to

distinguish the type of weapon that would support a conviction

under the Massachusetts ACCA by requiring proof of not merely a
                                                                     9


dangerous weapon, but proof of a deadly weapon.    That the

Legislature used the term "deadly weapon" and not "dangerous

weapon" speaks to its intent that the term carry a narrow

meaning in the context of the armed career criminal statute.     By

contrast, the Commonwealth's proposed interpretation would

eliminate the significance of the Legislature's choice of

language.    We instead construe the statute so as to give meaning

to all of its terms.    See Commonwealth v. Mendonca, 50 Mass.

App. Ct. 684, 687 (2001).

     The Commonwealth correctly notes that the terms "dangerous

weapon" and "deadly weapon," at times, have been used

interchangeably in our case law.   However, until recently, no

statute has required us to consider the difference between the

two terms.   We have not found, and the Commonwealth does not

identify, any published case in which our court or the Supreme

Judicial Court has compared the definitions of the two terms or

adopted a position that the two terms are synonymous as a matter

of law, and we decline to adopt such a position here.6


     6
       The terms are not used interchangeably in two of the cases
on which the Commonwealth relies. At issue in Commonwealth v.
Shea, 38 Mass. App. Ct. 7 (1995), was whether the ocean can be
considered a weapon within the meaning of G. L. c. 265, § 15A.
Our only mention of the term "deadly weapon" in that case was in
a footnote explaining that the definition of dangerous weapon
adopted in the Proposed Criminal Code of Massachusetts c. 263,
§ 3(i) (noted with approval in Commonwealth v. Tarrant, 367
Mass. 411, 417 n.6 [1975], to which we were citing), tracked the
definition of "deadly weapon" set out in § 210 of the Model
                                                                10


Furthermore, the inherent deadliness of the weapon was not at

issue in any of the cases in which the terms were used

interchangeably.7




Penal Code (1980). See Shea, supra at 15 n.7. In so observing,
we did not adopt a definition of deadly weapon or suggest that
the two terms are in fact synonymous under Massachusetts law.
Rather, we were noting that both definitions require that a
weapon be some sort of object or instrumentality that was
capable of being possessed or controlled, unlike the ocean.

     We also do not read the Supreme Judicial Court's use of the
terms in Commonwealth v. Kerns, 449 Mass. at 651-655, to be
interchangeable. Kerns involved a juvenile who was charged with
"threatening to use deadly weapons" under G. L. c. 269, § 14(b).
Id. at 642. The court interpreted the statute at issue in that
case as intending to "punish the communication of any threat
that a deadly, dangerous, or destructive device, substance, or
item is or will be present or used at a specified place or
location." Id. at 652. The court's use of the three adjectives
suggests that it did not assign precisely the same meaning to
each. This interpretation is consistent with the plain language
of G. L. c. 269, § 14(b)(1), as amended by St. 2002, c. 313,
§ 2, which includes "any other device, substance or item capable
of causing death, serious bodily injury or substantial property
damage," clearly covering devices capable of causing varying
degrees of harm, not only those that are deadly. Consequently,
the court's interpretation of G. L. c. 269, § 14(b), supports
our conclusion that the terms "deadly weapon" and "dangerous
weapon" have distinct meanings under the common law.
     7
       In two out of the three cases to which the Commonwealth
appropriately points, the weapon at issue was a firearm, which
would clearly qualify as both a dangerous and a deadly weapon.
See Commonwealth v. Maldonado, 429 Mass. 502, 509 n.6, 510
(1999); Commonwealth v. Williams, 18 Mass. App. Ct. 945, 946
(1984). This leaves only one case identified by the
Commonwealth in which the use of the term "deadly weapon" is
inconsistent with our interpretation today, and the nature of
the weapon used was not at issue in that case. See Commonwealth
v. Wilson, 72 Mass. App. Ct. 416, 417-418 (2008) (once referring
to crime of "assault and battery with a dangerous weapon" as
"assault and battery with a deadly weapon" but evaluating
                                                                  11


    Instead, while the meaning of deadly weapon has not been

widely explored in our case law, our limited discussion of the

term suggests that the term has independent legal significance.

Although decided after the enactment of G. L. c. 140, § 121, we

concluded in Commonwealth v. Foreman, 63 Mass. App. Ct. 801, 803

(2005), that "[t]he definition of violent crime in [G. L.

c. 140,] § 121[,] uses 'deadly weapon' in the general, common-

law sense."   We relied, in part, on Commonwealth v. Claudio, 418

Mass. 103, 108 (1994), which stated, "[a]s a general principle,

our cases treat those felonies involving the use of a deadly

weapon, such as a knife or a loaded gun, as inherently dangerous

to human life."   See Commonwealth v. Turner, 59 Mass. App. Ct.

825, 828-830 (2003) (knife is commonly thought of as deadly

weapon).

    In addition, while reviewing other jurisdictions' law on

the issue of a weapon's apparent ability to inflict harm for the

purposes of assault by means of a dangerous weapon, the Supreme

Judicial Court has noted that "some [jurisdictions'] decisions

are based on the application of statutes relating to assaults

with 'deadly weapons' which may mean something different from or

more than the words 'dangerous weapon' used in [G. L. c. 265,




whether assault and battery can be on Commonwealth rather than
on person).
                                                                     12


§ 15A]" (emphasis supplied).     Commonwealth v. Henson, 357 Mass.

686, 691 n.1 (1970).

    b.    Legislative purpose.   Next, our interpretation of the

term deadly weapon is consistent with the Legislature's intent

in enacting the Massachusetts ACCA.

    In 1998, the Legislature adopted the current version of

G. L. c. 140, § 121 (and its definition of violent crime)

together with the armed career criminal sentencing enhancements

in G. L. c. 269, § 10G, as part of an extensive package of

legislative revisions by which it substantially altered the gun

control laws.    See St. 1998, c. 180, §§ 8 (defining terms for

firearms laws), 71 (adopting armed career criminal provision).

See also Commonwealth v. Furr, 58 Mass. App. Ct. 155, 157-158

(2003).   In enacting G. L. c. 269, § 10G, the Legislature

intended to increase penalties for individuals convicted of

serious crimes who subsequently violated firearms laws.      See id.

at 158.

    However, it is clear from its restriction of the qualifying

juvenile offenses that the Legislature intended the law to treat

prior delinquency adjudications differently from adult

convictions.    As the Commonwealth acknowledges, the

Legislature's facially apparent purpose for this distinction is

to restrict the statute's application to juvenile offenses to

those that involved a risk to life.     Again, if the Legislature
                                                                  13


had intended to provide for sentencing enhancements when a prior

juvenile adjudication involved any dangerous weapon, it could

have done so explicitly.    Therefore, to construe the phrase

"deadly weapon" broadly so as to encompass all dangerous weapons

would be at odds with the apparent legislative intent of the

statute.

     c.    Federal Armed Career Criminal Act.   Moreover, in

construing the definition of "deadly weapon" as distinct from

"dangerous weapon," our construction of the statute is

consistent with the language of the Federal Armed Career

Criminal Act (Federal ACCA), to which our courts have long

turned for interpretive guidance.   See generally Commonwealth v.

Colon, 81 Mass. App. Ct. 8, 14 (2011).8

     Where the Massachusetts ACCA allows sentence enhancement

only where acts of juvenile delinquency "involve the use or

possession of a deadly weapon" (emphasis supplied), G. L.

c. 140, § 121, the Federal analog allows enhancement only where

such acts "involv[e] the use or carrying of a firearm, knife, or

destructive device" (emphasis supplied).    18 U.S.C.



     8
       The language of the Massachusetts ACCA closely tracks that
of the Federal analog, with only a few differences. For
example, the Federal ACCA uses the term "violent felony" rather
than the term violent crime. Compare 18 U.S.C. § 924(e)(1)
(2006) with G. L. c. 239, § 10G. See Commonwealth v. Colon,
supra at 12-14.
                                                                    14


§ 924(e)(2)(B).9    The Federal ACCA does not allow enhancement for

all juvenile offenses involving dangerous weapons, but only for

a subset of weapons that our common law would recognize as

deadly.    The Massachusetts ACCA achieves the same result by

explicitly using the term "deadly" instead of listing deadly

weapons.

     d.    Narrow construction.   Finally, it is well established

as a general matter that criminal statutes are to be construed

narrowly, further constraining us to resolve any reasonable

doubt as to the statute's use of the term deadly weapon in favor

of the defendant.    See Commonwealth v Kerr, 409 Mass. 284, 286

(1991); Commonwealth v. Pagan, 445 Mass. 161, 167 (2005).

     2.    Meaning of "deadly weapon" under the statute.   Because

we conclude that "deadly weapon" is a term with independent

legal significance, we must now determine its meaning as used by


     9
         The Federal statute defines "violent felony" as follows:

     "any crime punishable by imprisonment for a term exceeding
     one year, or any act of juvenile delinquency involving the
     use or carrying of a firearm, knife, or destructive device
     that would be punishable by imprisonment for such term if
     committed by an adult, 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, arson, or extortion, involves use of
     explosives, or otherwise involves conduct that presents a
     serious potential risk of physical injury to another."

18 U.S.C. § 924(e)(2)(B).
                                                                    15


the Legislature in its definition of violent crime for the

purposes of G. L. c. 269, § 10G.   The Commonwealth argues that

the Legislature intended the armed career criminal statute to

apply to prior juvenile offenses involving weapons that were

deadly as used, not only to those involving weapons that are

inherently deadly.   We disagree and conclude that for the

purposes of the Massachusetts ACCA, a prior juvenile offense may

serve as a predicate offense only if the Commonwealth can prove

that the weapon used or possessed in the commission of the

offense was inherently deadly.

     a.   Scope of inquiry into prior convictions.   To interpret

the term "deadly weapon" in the context of this statutory scheme

to include weapons that are not inherently deadly would be

contrary to the United States Supreme Court's recent reasoning

in Johnson v. United States, 135 S. Ct. 2551 (2015), as to the

appropriate scope of inquiry into prior convictions for the

purposes of finding a defendant to be an armed career criminal.10

     The Supreme Court has long curtailed extensive fact finding

by the sentencing court.   It has held that other than in a

narrow range of cases, the Federal ACCA "mandates a formal

categorical approach [in determining whether a prior offense

qualifies as a predicate offense], looking only to the statutory

     10
       Johnson, supra, involved the residual clause of the
Federal ACCA, but the Court's reasoning applies here as well.
See note 11, infra.
                                                                  16


definitions of the prior offenses, and not to the particular

facts underlying those convictions."   Taylor v. United States,

495 U.S. 575, 600-602 (1990), cited favorably by Johnson, supra

at 2562.   See Shepard v. United States, 544 U.S. 13, 16 (2005).

     The Court in Johnson, supra at 2557, recently concluded

that the residual clause of the Federal ACCA11 was

unconstitutionally vague, reasoning, in part, that the language

of the clause requires sentencing judges to evaluate specific

facts surrounding the commission of the predicate offense,

rather than simply consider the elements of the offense.     For us

to hold that deadly weapons for the purposes of the

Massachusetts ACCA includes weapons that are deadly only when

used in a particular manner -- in other words, that are not

inherently deadly -- would require exactly the type of analysis

that the Supreme Court rejected in Johnson.   The fact finder

necessarily would have to evaluate whether, in the commission of

a prior offense, the defendant used an object in a manner that

was deadly, rather than simply whether the element of the crime




     11
       "Under the [Federal ACCA], a defendant convicted of being
a felon in possession of a firearm faces more severe punishment
if he has three or more previous convictions for a 'violent
felony,' a term defined to include any felony that 'involves
conduct that presents a serious potential risk of physical
injury to another'" (emphasis supplied). Johnson, supra at
2555, quoting from 18 U.S.C. § 924(e)(2)(B). The emphasized
clause is known as that statute's residual clause. Id. at 2556.
                                                                  17


charged required proof that the weapon used was deadly.   Cf.

Johnson, supra.12

     Therefore, unless the Commonwealth can prove, without

inquiring into the manner in which the weapon was used, that a

prior adjudication involved a deadly weapon, the adjudication

     12
       We also have adopted the categorical approach under the
Massachusetts ACCA for cases in which "the statutory definition
of the prior offense unambiguously qualifies that offense as a
predicate conviction." Commonwealth v. Colon, 81 Mass. App. Ct.
at 5.

     However, we have held that "in the narrow range of cases
where the statutory or common-law definition of a prior offense
does not conclusively bring it within the category of 'violent
crimes,' the familiar sufficiency of the evidence standard
mandates [a] modified categorical approach," which "permits a
court to determine which statutory phrase was the basis for the
conviction by consulting the trial record -- including charging
documents, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial, and
jury instructions and verdict forms." Id. at 16 (quotation
omitted).

     Accepting the determination that the Legislature intended
the term "deadly weapon" to have independent legal significance
under the statute, the elements of assault and battery by means
of a dangerous weapon do not "unambiguously qualif[y] that
offense as a predicate conviction," Colon, supra, when the
offense was committed as a juvenile because to qualify, the
offense must have been committed with a deadly weapon.
Therefore, under Colon, the fact finder for a charge under the
Massachusetts ACCA may consult the trial record to determine if
the dangerous weapon used in the underlying juvenile offense was
also a deadly weapon. Such an inquiry is still appropriate
under Johnson, insofar as the question is whether the weapon
used was inherently deadly. The nature of the weapon itself can
easily be ascertained from the record without requiring
additional fact finding about the use of the weapon, which may
not be apparent from the trial record. We cannot assume that
because a jury found that the weapon used was dangerous (either
inherently or as used), they also would have found that the
defendant used the weapon in a deadly manner.
                                                                   18


cannot qualify as a predicate offense for a conviction under

G. L. c. 269, § 10G.   To hold otherwise would render the clause

unconstitutionally vague under Johnson.

    b.     Ordinary usage and common-law meanings.   The

Commonwealth also argues that because our common-law

understanding of "dangerous weapon" includes weapons that are

not inherently dangerous, the same must be true of our

definition of "deadly weapon."    Such a conclusion does not

necessarily follow and conflicts with the ordinary meaning of

the word "deadly."

    The Commonwealth points to, and we have found, no cases in

which we have applied this construction to the term "deadly

weapon."   To the contrary, as discussed above, our cases

discussing deadly weapons have generally involved the use of

those that are "inherently dangerous to human life."

Commonwealth v. Claudio, 418 Mass. at 108.    See Commonwealth v.

Drew, 4 Mass. 391, 396 (1808) (describing deadly weapon as one

that would "necessarily," was "likely to," or would "probably,"

kill or do great bodily harm).

    Finally, to include weapons that are deadly only as used

for the purposes of the Massachusetts ACCA would effectively

eliminate the discrete distinction between "deadly weapon" and

"dangerous weapon" and, consequently, equate the two terms.     For

the reasons already stated, we decline to interpret the statute
                                                                   19


in such a way that fails to give meaning to the Legislature's

choice of words.13

     3.   A pen is not a deadly weapon for the purposes of the

Massachusetts ACCA.     Because we hold that, for the purposes of a

conviction under G. L. c. 269, § 10G, a deadly weapon must be

one that is inherently deadly, and because a pen is not

inherently deadly, we need not reach the defendant's alternative

argument that the manner in which he used the pen in the

commission of his juvenile offense was not deadly.14

     Conclusion.     We reverse the defendant's conviction under

G. L. c. 269, § 10G(c), as an armed career criminal based on

three predicate violent crimes and remand for his resentencing

as an armed career criminal based on two predicate violent

crimes under G. L. c. 269, § 10G(b).     The remaining judgments

are affirmed.

                                      So ordered.




     13
       If the Legislature intended "deadly" to be synonymous
with "dangerous," it is free to amend the statute to reflect
that purpose.
     14
       We do not comment on all of the weapons that would be
considered inherently deadly except to say that the category
clearly includes loaded firearms, certain knives, and explosive
devices. See Commonwealth v. Claudio, 418 Mass. at 108.
