           United States Court of Appeals
                        For the First Circuit

No. 12-2219

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                          RAYMOND MARTINEZ,

                        Defendant, Appellant.


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

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



                                Before

                 Howard and Kayatta, Circuit Judges,
                   and McCafferty,* District Judge.



     William W. Fick for appellant.
     Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.



                            August 6, 2014




     *
         Of the District of New Hampshire, sitting by designation.
                KAYATTA, Circuit Judge.            After the district court denied

his motion to suppress evidence of a firearm found on his person,

appellant Raymond Martinez entered a conditional guilty plea on one

count of possessing a firearm as a convicted felon, see 18 U.S.C.

§ 922(g)(1), reserving the right to appeal the suppression ruling.

See Fed. R. Crim. P. 11(a)(2).               He now appeals that ruling, as well

as   the   district       court's      application        of   a    six-level     sentence

enhancement       based    on   a     finding      that    his     prior   Massachusetts

conviction       for   assault        and   battery       constituted      a     "crime   of

violence" under the Sentencing Guidelines.                         Though we affirm the

denial of the suppression motion, we vacate Martinez's sentence and

remand for further proceedings.

                                      I.    Background

                After holding two evidentiary hearings on Martinez's

motion     to    suppress,      the    district      court     issued      the   following

findings of fact, which remain largely unchallenged on appeal.                            On

April 10, 2011, two members of the "Latin Kings" street gang were

shot to death as they sat in a car in Worcester, Massachusetts. The

wake for one of the victims was scheduled to take place at a church

in Framingham, Massachusetts, at 4:00 PM on April 14, 2011.

Framingham police officer Robert Lewis informed other officers of

the wake at roll call before their 4:00 PM shift on April 14 and

advised them that there was a heightened risk for gang violence in

the area.        The Framingham Police Department assigned Lewis, along


                                             -2-
with Detective Matthew Gutwill and other Framingham law enforcement

officers, to monitor the area around the church where the wake was

held.

              Soon after the wake concluded, Gutwill drove by nearby

Roosevelt Park and observed a number of cars and people gathering

there.      The park was located close to an address where police

believed that people who had attended the wake would congregate.

Gutwill did not recognize as gang members any of the people he saw

there.      He did, however, relay his observation of the gathering to

a   dispatcher     over    the   police    radio,   expressing   concern   that

"something wasn't right."

              Upon hearing of Gutwill's message to the dispatcher,

Lewis drove to the park.           There, he saw two marked police cars

approach the park and a third, silver car leave abruptly, with its

tires screeching.         After the car ran a red light,1 Lewis pulled it

over, notified dispatch that he was conducting a traffic stop, and

requested backup.

              When he approached the car, Lewis observed four people

inside.       He   recognized     the     front-seat   passenger   as   Raymond

Martinez, the appellant, whom he had met before and knew to be a



        1
         There was conflicting testimony in the district court
regarding whether the light was red, but the district court
credited the testimony supporting the conclusion that it was.
Neither party challenges that conclusion on appeal. See generally
United States v. Anderson, 745 F.3d 593, 598 (1st Cir. 2014)
(arguments not advanced on appeal are waived).

                                          -3-
member of the "Bloods" street gang.    Lewis also knew that Martinez

had previously been charged with assault and battery and dangerous

weapons offenses.    Consequently, through the open, driver's-side

window, Lewis instructed the car's occupants to keep their hands

where he could see them.    The backseat passengers put their hands

on the backs of the headrests of the seats in front of them, and

Martinez put his hands on the dashboard.

            Lewis asked the driver for his license and registration.

The driver said he had neither, but identified himself as Michael

Tisme.    Lewis recognized that name as belonging to a member of the

"Bloods" gang.    After being told Tisme's name, Lewis told Tisme

that he smelled marijuana in the car.      He then ordered Tisme to

exit the vehicle to be placed under arrest.

            At that time, Lewis saw Martinez pull his hands off the

dashboard and reach toward his waist.    Lewis yelled at Martinez to

put his hands back on the dashboard, which he did.       Lewis then

conducted a pat search of Tisme and found a bag of marijuana in his

pocket.

            At this point, Gutwill arrived on the scene.      Lewis

warned Gutwill that Martinez appeared nervous and had been pulling

his hands toward his waist, and asked Gutwill to watch Martinez.

In the course of doing so, Gutwill observed Martinez again moving

his hands off the dashboard toward his waist.       All parties now

agree that Martinez was moving his hands to his waist to reach a


                                 -4-
phone, and that, at some point during the stop, he managed to place

a   twelve-second    call     while   in    the   car    with    the    other    two

passengers.    The evidence is conflicting as to whether any officer

actually saw the phone.         The district court found that they did

not.

             Shortly thereafter, a third law enforcement officer,

Sergeant Kathryn Esposito, arrived and heard Gutwill repeatedly

ordering Martinez to keep his hands on the dashboard.                        Gutwill

instructed    Esposito   to    remove      Martinez     from    the    car   because

Martinez was reaching for his waistband. Esposito removed Martinez

from the car, walked him to Gutwill's nearby vehicle, and ordered

him to place his hands on the vehicle and spread his feet.                      She

then asked if he had any weapons on him.                When an answer was not

forthcoming, she conducted a pat-frisk of him.                 As she started to

search his waistband, Esposito noticed a hard object that felt like

the butt of a gun.    She asked Martinez, "What's this?," and when he

again failed to respond, she told him not to move and then pulled

the object--a loaded firearm--from his waistband.                     The officers

then placed Tisme and Martinez in handcuffs.

             Martinez was subsequently indicted for being a felon in

possession of a firearm that had traveled in interstate commerce.

See 18 U.S.C. § 922(g)(1).       He moved to suppress the firearm on the

ground that the officers had no reasonable suspicion that he was

armed and dangerous when they frisked him.              See Terry v. Ohio, 392


                                      -5-
U.S. 1 (1968).         When the district court denied that motion,

Martinez entered a guilty plea conditioned on the right to appeal

that ruling.

             After    Martinez's    guilty     plea,    the   Probation   Office

prepared a pre-sentence report ("PSR") in which it recommended a

base offense level of 20.              The recommendation rested on the

conclusion    that     Martinez's   2010     Massachusetts     conviction    for

assault and battery, see Mass. Gen. Laws ch. 265, § 13A, qualified

as a "crime of violence" under the Sentencing Guidelines, see

U.S.S.G. §§ 2K2.1(a)(4), 4B1.2(a).           After Martinez timely objected

to that conclusion, the district court held a hearing at which it

found that, in the process of pleading guilty to the assault and

battery charge in state court, Martinez had admitted facts that

made clear that his conviction was for intentional, harmful assault

and battery.         The district court therefore concluded that the

offense   constituted      a   crime   of    violence,    adopted   the     PSR's

suggested base offense level of 20, and found that Martinez's

Guidelines Sentencing Range was 70-87 months, rather than the 37-46

month range that would have governed had the "crime of violence"

determination    gone    the   other    way.      The    district   court   then

sentenced Martinez to 70 months in prison.

             Martinez appeals both the denial of his suppression

motion and his 70-month sentence.            We have jurisdiction under 28

U.S.C. § 1291.


                                       -6-
                          II.   Analysis

     We address the suppression motion first.   Finding that it was

properly denied, we then discuss Martinez's sentence.

A.   The district court did not err in concluding that the search
     of Martinez was supported by reasonable suspicion.

          Martinez attacks the district court's denial of his

motion to suppress on both factual and legal grounds.     First, he

argues that the district court clearly erred by crediting the

officers' testimony that they genuinely believed that Martinez's

hand movements were furtive and suspicious.     Second, he contends

that even if the district court did not clearly err in its fact

finding, the totality of the circumstances simply did not give rise

to the sort of particularized suspicion necessary to support a pat-

frisk under Terry v. Ohio, 392 U.S. 1 (1968).

     1.   The district court's finding that the officers believed
          that Martinez had reached for a gun was not clearly
          erroneous.

          We begin with Martinez's fact-based challenge. On review

of a motion to suppress, we review the district court's findings of

fact and credibility determinations only for clear error.    United

States v. Brake, 666 F.3d 800, 804 (1st Cir. 2011). This deference

"reflects our awareness that the trial judge, who hears the

testimony, observes the witnesses' demeanor[,] and evaluates the

facts first hand, sits in the best position to determine what

actually happened."   United States v. Young, 105 F.3d 1, 5 (1st



                                -7-
Cir. 1997); see also United States v. Zapata, 18 F.3d 971, 975 (1st

Cir. 1994).     Reversal is appropriate "only if, after considering

all the evidence, we are left with a definite and firm conviction

that a mistake has been made."        Brake, 666 F.3d at 804 (internal

quotation marks omitted).

            The record is uncontested that, contrary to instructions

from the officers, Martinez repeatedly moved his hands to his

waist.    It is also clear that Martinez managed to place a twelve-

second telephone call during the arrest.         Beyond that, the record

presents    a   classic   swearing    contest:   Martinez   and   another

individual who was in the car, Trinity Font, swear that the

officers noticed that it was a phone for which Martinez was

reaching; the officers swear they did not.             Given the tense

circumstance, which we discuss in more detail below, either story

is plausible.    And that is certainly enough to accept the district

court's finding under the applicable standard of review.            See,

e.g., Zapata, 18 F.3d at 975.    We therefore proceed on the basis of

the facts as the district court found them.

     2.     The search of Martinez was supported by reasonable
            suspicion of criminal activity.

            Martinez also contends that, even taking as given the

district court's factual findings, the search was unconstitutional.

In so arguing, Martinez suggests that Sergeant Esposito acted on

the basis of "a mere hunch," rather than with the support of

"articulable facts" giving rise to a reasonable suspicion of

                                     -8-
criminal activity.   See, e.g., United States v. Romain, 393 F.3d

63, 71 (1st Cir. 2004).   We review de novo the district court's

contrary conclusion. See United States v. Zapata, 18 F.3d 971, 975

(1st Cir. 1994).

          In Terry v. Ohio, 392 U.S. 1, 27 (1968), the Supreme

Court concluded that, under the Fourth Amendment to the United

States Constitution, "there must be a narrowly drawn authority to

permit a reasonable search for weapons for the protection of the

police officer, where he has reason to believe that he is dealing

with an armed and dangerous individual, regardless of whether he

has probable cause to arrest the individual for a crime."      The

Court continued, "[t]he officer need not be absolutely certain that

the individual is armed; the issue is whether a reasonably prudent

man in the circumstances would be warranted in the belief that his

safety or that of others was in danger."   Id.

          Interpreting Terry in United States v. McGregor, 650 F.3d

813, 821-23 (1st Cir. 2011), we held that a pat-frisk for weapons

was constitutional where officers had observed two men, one a known

gang member with a criminal record, drive up to a hospital to which

two other gang members who had been shot had been taken, leave at

a high rate of speed with others, and appear "suspiciously nervous"

as officers approached them.   On the basis of those facts, we were

unwilling to "fault the [district court's] finding that the police

actually and reasonably suspected that the [defendant] might be


                                -9-
armed--a suspicion resting on rational reasons, rather than pure

gut   feelings--which       .    .   .   justified      a   limited     weapons

search . . . ."    Id. at 821.

             So it is here, a fortiori.          At the time of Martinez's

detention, officers knew that a wake for a murdered member of the

"Latin Kings" gang had taken place that evening, and were thus on

patrol for gang violence in that area.           They had observed the car

in which Martinez was riding leave abruptly as soon as police

cruisers arrived, running a red light in the process.                 Lewis had

recognized Martinez as a member of the "Bloods" gang and as an

individual who had previously been charged with dangerous weapons

offenses and with assault and battery.               When Tisme identified

himself, Lewis had further recognized his name as belonging to a

member of the "Bloods" gang. And with all this background in mind,

officers watched Martinez repeatedly flout their orders to keep his

hands on the dashboard, instead reaching toward his waist, as they

attempted to complete Tisme's arrest.        As in McGregor, police in a

highly volatile situation relied not simply on gut feelings, but on

objectively    reasonable       justifications    for   suspecting     that   an

individual acting suspiciously during a traffic stop was armed and

dangerous.

             Martinez makes no attempt to distinguish McGregor, but

instead points us to two other cases, United States v. Monteiro,

447 F.3d 39 (1st Cir. 2006), and United States v. McKoy, 428 F.3d


                                     -10-
38 (1st Cir. 2005), which he suggests ought to govern our analysis.

In Monteiro, we held that a seizure of a known gang member was

impermissible under Terry where it was based only on a "minimally

corroborated" tip that the defendant had been involved in a

shooting six days earlier.      447 F.3d at 42-44.     And in McKoy, we

reversed the denial of a suppression motion, resting on the ground

that "[i]t is simply not reasonable to infer that a driver is armed

and dangerous because the officers believe that he appears nervous

and reaches towards the car's console when approached by the

police, even in a high-crime neighborhood."      428 F.3d at 41.

            We distinguished each of these cases in McGregor itself,

and the grounds on which we did so apply with the same force here.

Monteiro stressed "that the police had no reason to believe that

either the driver or the passengers had been or were about to be

criminally active when the stop occurred."      See McGregor, 650 F.3d

at 823 (citing Monteiro, 447 F.3d at 42-43).            In McGregor, by

contrast, the officers had "sensibly suspected that the [defendant]

might be armed and bent on retaliating for the shooting," and "had

reasonably grounded their suspicion [i]n a host of facts beyond the

men's obvious nervousness."     650 F.3d at 823.      A similar contrast

between the reasonless suspicion in Monteiro and the officers'

reliance on facts applies here: While the officers' reasonable

suspicion    of   Martinez   rested,   permissibly,    in   part   on   his

involvement in past crimes, additional, objective factors such as


                                  -11-
the nature of the occasion, the reaction of a car full of gang

members when a police car approached, and the refusal to keep hands

visible all pointed toward a reasonable likelihood that Martinez

was armed and potentially dangerous.

          Nor does McKoy cast doubt on our conclusion.   As we said

in McGregor, McKoy "required suppression of evidence seized during

a warrantless car search, holding that the police infringed the

defendant's constitutional rights by bottoming their suspicion

solely on his apparent nervousness and the area's dangerousness."

See McGregor, 650 F.3d at 823 (citing McKoy, 428 F.3d at 40-41).

Here, as we have explained, there was more.2

          For the above reasons, we affirm the district court's

denial of Martinez's motion to suppress.




     2
        Martinez cryptically contends that once Tisme was arrested,
"the police had no reasonable suspicion of criminal activity that
would justify further investigative detention or Terry stop of the
passengers." See Appellant's Br., at 14 & n.3. This argument is
never developed at all in his brief, presumably because it would be
such a stretch to say that a gang member who repeatedly reaches for
his waist in contravention of direct orders from law enforcement
during a constitutionally-permissible stop cannot be searched for
weapons. See generally Terry, 392 U.S. at 10 (observing that "the
police are in need of an escalating set of flexible responses,
graduated in relation to the amount of information they possess").
In any event, because the argument is so incomplete that we are
unable to make out its contours, we decline to address it. See,
e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").

                               -12-
B.      The district court erred in concluding that Martinez's base
        offense level was 20.

             We turn now to Martinez's challenge to his sentence.

Martinez argued unsuccessfully below, and now claims on appeal,

that his base offense level should have been 14, rather than 20,

because his 2010 conviction under the Massachusetts Assault and

Battery statute did not constitute a "crime of violence" under the

Sentencing Guidelines. See U.S.S.G. §§ 2K2.1(a)(4), 4B1.2(a). The

government defends the district court's contrary conclusion and

further argues that an additional conviction of Martinez's, under

the   Massachusetts   statute   criminalizing   simple   assault,   also

qualifies as a crime of violence, and thus provides an alternative

avenue by which we may affirm the sentence.      Finding that neither

offense so qualifies, we vacate Martinez's sentence and remand for

further proceedings.

        1.   Martinez's Massachusetts assault and battery conviction

             The question of whether an offense qualifies as a crime

of violence is a quintessentially legal one, and our review is de

novo.    See United States v. Jonas, 689 F.3d 83, 86 (1st Cir. 2012).

Under the Guidelines, an offense qualifies if it is punishable by

more than one year of imprisonment and either "(1) has as an

element the use, attempted use, or threatened use of physical force

against the person of another," or "(2) is burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical

                                  -13-
injury to another."   U.S.S.G. § 4B1.2(a).3   As we have explained in

detail elsewhere, we apply this standard employing a "categorical"

approach: A state offense qualifies as a crime of violence only if

its elements are such that we can conclude that a person convicted

of the offense has "necessarily" been found guilty of conduct that

meets the above definition.   Descamps v. United States, 133 S. Ct.

2276, 2283 (2013) (internal quotation marks omitted); see also

United States v. Fish, No. 12-1791, 2014 WL 715785, at *2-12 (1st

Cir. Feb. 26, 2014).     And notwithstanding the absence of Sixth

Amendment constraints in the context of Guidelines calculations, we

have previously determined that the categorical approach, for all

its "anomalous" results, applies fully to the determination of

whether a prior offense constitutes a crime of violence under the

Guidelines.   See United States v. Giggey, 551 F.3d 27, 38-41 (1st

Cir. 2008) (en banc).

          "Massachusetts's simple assault and battery statute[]

covers . . . three types of battery: (1) harmful battery; (2)

offensive battery; and (3) reckless battery." See United States v.


     3
        We have elsewhere observed that this definition is "nearly
identical in meaning" to that of the term "violent felony" in the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(ii)(B). See, e.g.,
United States v. Holloway, 630 F.3d 252, 254 n.1, 262 (1st Cir.
2011); see also United States v. Willings, 588 F.3d 56, 58 n.2 (1st
Cir. 2009). Though the meanings of the two terms are "not quite[]
the same," see United States v. Fish, No. 12-1791, 2014 WL 715785,
at *2-12 (1st Cir. Feb. 26, 2014), both parties seem to assume that
cases interpreting one are, in the context of this case, equally
applicable to the other. Hearing no protest, we "refer to both
bodies of jurisprudence seamlessly." Jonas, 689 F.3d at 86.

                                -14-
Holloway, 630 F.3d 252, 256 (1st Cir. 2011).              Martinez argues on

appeal that, for two separate reasons, simple assault and battery

under Massachusetts law is not necessarily a crime of violence:

First, offensive battery does not necessarily involve violent

physical force, see id. at 261; Johnson v. United States, 559 U.S.

133, 140 (2010) (" . . . the phrase 'physical force' means violent

force--that is, force capable of causing physical pain or injury to

another    person.");    and   second,        reckless   battery    does    not

necessarily    involve   the   degree    of    intent    required   under   the

guidelines.4    Apparently conceding these points, the government

argues only that Martinez pleaded guilty specifically to harmful

battery.    That form of the offense requires both an intentional

touching and violent force, see Commonwealth v. Porro, 458 Mass.

526, 529-30 (2010), and all agree that it qualifies as a crime of

violence under the Guidelines, see Holloway, 630 F.3d at 257, 262

(2009); see generally U.S.S.G. § 4B1.2(a)(1).

           To support its contention that the 2010 conviction was

for harmful battery, the government relies solely on the transcript

of Martinez's 2010 allocution.          See generally Shepard v. United

States, 544 U.S. 13, 16 (2005) (holding that a sentencing court

attempting to identify a crime of conviction is "generally limited


     4
        Martinez makes no argument that the Massachusetts assault
and battery offense, which falls under a single statute that does
not list alternative elements, is in fact not divisible into three
separate offenses. See United States v. Anderson, 745 F.3d 593,
598 (1st Cir. 2014). We express no opinion on the matter.

                                   -15-
to examining the statutory definition, charging document, written

plea agreement, transcript of plea colloquy, and any explicit

factual    finding      by   the   trial   judge      to   which    the    defendant

assented"). Specifically, it argues that the transcript shows that

in the course of pleading guilty, Martinez admitted to facts that

made   clear     that    harmful   battery      was   in   fact    the    offense   of

conviction.        The portion on which the government relies reads as

follows:

       THE COURT:       And the facts of the case?

       ASSISTANT DISTRICT ATTORNEY: Your Honor, on February 12,
       2009[,] officers of the Hudson police department were
       dispatched to 86 Apsley Street, Apartment 4 for report of
       assault and battery. Upon arrival they did speak with an
       [individual]. She stated that she had gotten into an
       argument with her boyfriend Raymond Martinez and that he
       had struck her during the course of that argument. Those
       are the facts of the case, Your Honor.

       . . .

       THE COURT: You admit that you committed the offense just
       described by the DA?

       THE DEFENDANT:        Yes, sir.

               The government makes no argument that the actual offense

charged included intent (or even violent force) as a necessary

element.        Nor   did    Martinez    admit   in   so   many    words    that    he

intentionally struck his girlfriend.                  The government, though,

argues that when he admitted that he "struck" his girlfriend,

Martinez necessarily admitted that he intentionally struck her.




                                         -16-
            Certainly the word struck can be used in a manner that

connotates intentional conduct.              One of the definitions of "to

strike"    is    "to    deliver   or   aim    a   stroke,   blow,    or    thrust."

Webster's       Third   New   International       Dictionary    of   the   English

Language 2262 (2002).         And we do not doubt that, without analysis,

one might presume that an admission that one "struck" another with

enough force to cause injury would be an admission to harmful

battery.        Indeed, in an earlier case, we observed that a PSR

stating that a defendant had "struck" an individual "above the left

eye, tearing the skin and causing it to bleed heavily," would, if

the PSR could be relied upon, "almost certainly be sufficient to

show" harmful battery.         See United States v. Davis, 676 F.3d 3, 9

& n.5 (1st Cir. 2012).

            That observation in Davis, presented as an aside in a

footnote, was plainly dictum.                In substance, it was entirely

unnecessary to the holding, which was that the defendant had made

no showing of prejudice stemming from reliance on the PSR, because

he did not argue, even on appeal, that his prior conviction was not

for the harmful type of assault and battery.                   Id. at 9-10.      As

dictum, the observation warrants our careful consideration, but

does not control the results of that consideration.                   See, e.g.,

Diaz-Rodríguez v. Pep Boys Corp., 410 F.3d 56, 61 (1st Cir. 2005).

Indeed, even were the quoted observation in Davis not dictum, it

might well not control our decision here, because the standard


                                       -17-
referred to in Davis ("almost certainly") is likely no longer the

correct standard.      See Descamps, 133 S. Ct. at 2283 (making clear

that the question in cases such as this one is whether an earlier

conviction reveals that a defendant is "necessarily . . . guilty"

of a crime meeting the recidivist statute's requirements (internal

quotation marks omitted)).        In any event, whether the standard

applied in Davis was correct or not, we are unable, with the

benefit of full briefing and an opportunity to consider the

question when its answer makes a difference, to agree that the verb

"to strike" necessarily (or even "almost certainly") describes the

intentional causing of contact.         As early as 1894, the reporter of

decisions at Massachusetts's Supreme Judicial Court ("the SJC")

described a case in which "detached cars were in charge of a

brakeman, who was on the top of the car which struck plaintiff's

intestate,    and   this   brakeman    called    out   to   the   plaintiff's

intestate, to 'look out,' just before he was struck, but not in

time to prevent the accident."           Keene v. New England Mut. Acc.

Ass'n, 161 Mass. 149, 149 (1894).               The usage of "struck" to

describe accidental conduct has persisted: For example, when we

read that a pedestrian was struck in a crosswalk, we certainly do

not presume the striking was intended.          E.g., Kelleher v. American

Mut. Ins. Co. of Boston, 32 Mass. App. Ct. 501 (1992).                And in

myriad other contexts, common usage makes abundantly clear that the

verb   "to   strike"   warrants   a    state-of-mind    qualifier    without


                                      -18-
creating redundancy. See, e.g., Johnson v. United States, 559 U.S.

133, 136-37 (2010) (specifying that the Florida assault and battery

statute permits conviction if the state proves that the defendant

"'intentionally   struck'   the   victim"   (internal   citations   and

alterations omitted)); Roderick v. Brandy Hill Co., 36 Mass. App.

Ct. 948, 949 (1994) (describing an assault in which the offender

"had obtained [a] stick from the wooded area adjacent to the

playground just before he struck [the victim] accidentally in the

eye with it"); see also Charles Dickens, The Old Curiosity Shop 409

(Oxford Univ. Press) (1987) ("There are chords in the human heart--

strange, varying strings--which are only struck by accident; which

will remain mute and senseless to appeals the most passionate and

earnest, and respond at last to the slightest casual touch.").

Even the very dictionary on which the government relies provides a

definition of "to strike" that includes no intent.      See Webster's

Third New International Dictionary of the English Language 2262

(2002) (" . . . to come into contact or collision . . . ").

          It is therefore no surprise that one of our sister

circuits has, in a closely analogous case, found that the admission

of "striking" was not an admission of intentional striking for

purposes of the Guidelines. See United States v. McFalls, 592 F.3d

707, 717 (6th Cir. 2010).     Faced with an earlier conviction in

which the indictment had charged the defendant with "striking the

victim about the face with an unknown object, in that the victim


                                  -19-
required medical treatment," the Sixth Circuit held that the

document did "not clearly answer the question of whether" the

defendant        "acted      purposefully         or       knowingly      in

causing . . . injury."     Id.    This was so even though the indictment

alleged that the assault and battery had caused an "unlawful injury

to the person of said victim," and despite the further allegation

that   the    "strik[e]"   was     "accompanied    by   circumstances      of

aggravation."    Id.

             Perhaps   prepared   for   our   conclusion    that   the   word

"struck" does not mean "intentionally struck," the government

argues that even if the ordinary meaning of "struck" implies no

scienter, "the district court could reasonably conclude" that, in

the context of a domestic dispute, the word necessarily referred to

a purposeful act on Martinez's part.          We do not see this argument

as having the force claimed by the government.               As an initial

matter, the government's focus on what the district court "could

reasonably conclude from the guilty plea hearing" is a red herring:

as the government concedes, see Government's Br., at 26, our review

is de novo.    Moreover, we find no support in law, logic, or common

experience for the notion that all or even most all striking in a

domestic dispute is intentional.        To the contrary, it may well be

that heated argument is conducive to close encounters and reckless

gesticulation in a manner that other situations giving rise to

contact are not.


                                    -20-
             So, when Martinez admitted that he struck his girlfriend

in what the government describes as a domestic dispute, was he

admitting        that   he   intentionally    struck     her,     or     that    he

accidentally, negligently, or even recklessly struck her?                       No

Shepard document answers this question.               Nor would it make any

difference if we thought that Martinez, a gang member who carried

a   gun    and   had    obvious   issues   with    authority,    "most    likely"

committed intentional battery.             Rather, what is important is

whether Martinez's assent to the use of the word "struck"--either

alone or in conjunction with the context in which it was used--

actually necessitates the finding that he admitted to conduct that

was both intentional and physically violent.             See Descamps, 133 S.

Ct.   at    2284    ("[A]    conviction    based    on   a    guilty   plea     can

qualify . . . only if the defendant 'necessarily admitted [the]

elements of the [qualifying] offense.'" (quoting Shepard, 544 U.S.

at 26)).     Clearly it does not.

             To summarize:        Martinez admitted that he "struck" a

person.     Such a striking can occur without intent, as when a drunk

driver strikes a pedestrian, or a gesticulating berater swings

recklessly. The government must therefore argue that, based on the

circumstances, the striking to which Martinez admitted was both

intentional and forceful.           Yet no Shepard document shows that

Martinez confessed to such an added gloss.                   Nor does logic or

experience compel such a reading of his confession.                       And no


                                      -21-
precedent    authorizes    us   to   disregard   real,   non-hypothetical

unintentional conduct that could very well have given rise to a

conviction or plea.       Therefore, we cannot say with the required

certainty that he has been convicted of an offense that has the

required element of intent to qualify as a crime of violence.5

     2.     Simple assault

             The government further argues that, notwithstanding our

conclusion as to Martinez's assault and battery offense, we may

affirm on the alternative ground that a separate 2009 conviction

for simple assault, see Mass. Gen. Laws ch. 265, § 13A, qualified

as a crime of violence.         In particular, the government contends

that the crime of simple assault is defined in Massachusetts "as

either an attempt to use physical force on another, or as a threat

of use of physical force."       See Commonwealth v. Gorassi, 432 Mass.

244, 248 (2000).    The argument, in short, is that the elements of

simple assault, unlike the elements of simple assault and battery,




     5
       Because we find no adequate proof that Martinez admitted to
purposeful conduct, we have no need to decide whether the conduct
was violent within the meaning of the Guidelines.      Nor need we
reach the perhaps more difficult question of whether, when the
elements of two or more offenses are not truly "alternative," e.g.,
Descamps, 133 S. Ct. at 2283-84, but instead overlap, a plea
colloquy in which a defendant admits to facts that might have given
rise to a conviction under more than one of them nevertheless
permits a sentencing court to conclude that the admissions were
legally necessary components of a plea to a more serious charge,
rather than extraneous factual admissions offered in the course of
a plea on an overlapping, perhaps lesser charge.

                                     -22-
require the type of intent that is necessary to qualify an offense

as a crime of violence under section 4B1.2(a)(1).6

            The problem for the government is that the Guidelines

also require "physical force," which has been defined as "violent

force," see United States v. Jonas, 689 F.3d 83, 86 (1st Cir. 2012)

(emphasis added)--"that is, force capable of causing physical pain

or injury to another person."         See United States v. Johnson, 559

U.S. 133, 140 (2010); Fish, 2014 WL 715785, at *6 (holding that

"since [assault and battery with a dangerous weapon, under the

Massachusetts statute,] may be accomplished by a mere touching,

however slight, it does not have as an element the use of physical

force" (internal quotation marks omitted)).            By contrast, the SJC

held in 1983 that the "physical force" that suffices under the

Massachusetts assault statute may be a "mere touching."                     See

Commonwealth v. Burke, 390 Mass. 480, 482-83 (1983).

            The government concedes that the Guidelines standard

requires violent force. It argues, however, that Massachusetts has

more recently limited the scope of the assault offense to conduct

involving      violent   force.      Specifically,      it   points   us    to

Commonwealth v. Marinho, 464 Mass. 115, 131 n.24 (2013), in which

the SJC stated in dictum that "[t]he alternative elements of simple

assault   in    Massachusetts--the    attempted   or    threatened    use   of


     6
        Perhaps wisely, see United States v. Fish, 2014 WL 715785,
at *6-12 (1st Cir. Feb. 26, 2014), the government declines to argue
that the offense qualifies under section 4B1.2(a)(2).

                                     -23-
physical force against the person of another, see Commonwealth v.

Gorassi, 432 Mass. 244, 248 (2000)--mirror the definition of

'crime[s] of violence' under Federal statute."7         And it further

relies on Gorassi itself, the case on which the Marinho court

relied, in which, again in dictum, the SJC suggested that "[i]n the

case of an attempted battery type of assault . . . the Commonwealth

must prove that the defendant attempted to do bodily harm."        432

Mass. at 248.

           The government's claim that mere offensive touching no

longer suffices to support a conviction for simple assault in

Massachusetts nevertheless appears at best premature. For example,

side-by-side    with   the   quotation   above,   the   Gorassi   court

approvingly cited its earlier decision in Burke for the proposition

that "criminal battery is a harmful or offensive touching," and

made clear that an assault is either an attempted battery or a

threatened one.   See 432 Mass. at 347 (cited in Gorassi, 432 Mass.

at 247).    Gorassi also relied on the SJC's earlier opinion in

Commonwealth v. Delgado, 367 Mass. 432, 437 (1975), in which the

SJC explicitly endorsed the definition of assault found in the

Restatement (Second) of Torts: "[w]ords do not make the actor

liable for assault unless together with other acts or circumstances


     7
         Though we defer to the SJC's construction of state
offenses, see, e.g., Fish, 2014 WL 715785, at *14, the ultimate
determination of whether an offense so construed qualifies as a
"crime of violence" under the Guidelines is of course a matter of
federal law, see id.

                                 -24-
they put the other in reasonable apprehension of an imminent

harmful or offensive contact with his person."              367 Mass. at 437

n.3 (emphasis added).          And even more recently, the SJC again

confirmed that a threat of slight touching, if merely offensive, is

sufficient to establish a threatened battery, and thus an assault.

See Commonwealth v. Porro, 458 Mass. 526, 529-31 (2010).               At the

time when Martinez was convicted, only one Massachusetts case,

Gorassi, ran against this tide.

           In short, although the SJC has occasionally suggested in

dictum that the offense of assault might require a threat or

attempt   to   cause    physical   harm,   rather    than    mere    offensive

touching, it has never repudiated either the principle that assault

is attempted or threatened battery or the principle that battery

does not require violent force.      In the face of such ambiguity, we

are constrained to conclude that the Massachusetts assault statute

criminalizes all that the SJC has said it criminalizes, including

mere touching if offensive.          We therefore conclude that the

Massachusetts assault statute does not constitute a crime of

violence under section 4B1.2 of the Sentencing Guidelines, and

consequently,    that    the   district    court    improperly      calculated

Martinez's base offense level.

                               *     *        *

           In ruling that the government has not shown that Martinez

was previously convicted of a crime of violence as defined in the


                                    -25-
Guidelines, we are aware that a full exploration of the facts

underlying Martinez's prior convictions might well reveal that his

conduct has truly been violent by any measure.              But as to each

offense, the government asks us to resolve serious, lingering

doubts in its favor and against the defendant, by relying on

hunches as to what we think Martinez actually did.                 The Supreme

Court, wary of such forays beyond the narrow scope of defining the

elements of an offense, has demanded substantially more certainty

in   the   application     of   the    categorical      approach    than   the

government's analysis can afford.            See, e.g., Taylor v. United

States, 495 U.S. 575, 599-600 (1990).             For that reason, and for

others here identified, we observe quite simply that where state

law and the Shepard documents leave open a plausible and realistic

possibility that the defendant's prior conviction was for an

offense whose elements do not meet the applicable definition of

recidivist conduct, we cannot simply presume that the actual

conduct qualified.

                            III.      Conclusion

           For   the     foregoing     reasons,    we    affirm     Martinez's

conviction, vacate the district court's order sentencing him, and

remand for further proceedings consistent with this opinion.                So

ordered.




                                      -26-
