                  Not for Publication in West's Federal Reporter

          United States Court of Appeals
                         For the First Circuit

Nos. 11-2020
     11-2071

                               UNITED STATES,

                       Appellee, Cross-Appellant,

                                       v.

                             ANTHONY OLIVEIRA,

                 Defendant, Appellant/Cross-Appellee.


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

               [Hon. Nancy Gertner, U.S. District Judge]



                                    Before

                          Lynch, Chief Judge,
                 Howard and Thompson, Circuit Judges.


     John H. Cunha, Jr., Charles Allen Hope, Jaime J. Zambrana and
Cunha & Holcomb, P.C. on brief for appellant.
     Mark T. Quinlivan, Assistant U.S. Attorney, and Carmen M.
Ortiz, United States Attorney on brief for appellee.



                              October 3, 2012
           Per Curiam.       The government has appealed from the 100-

month sentence imposed upon Anthony Oliveira following his guilty

plea to being a felon in possession of a firearm and ammunition, in

violation of 18 U.S.C. § 922(g)(1).              We agree with the government

that, in view of this court's recent decision in United States v.

Rodriguez,    659    F.3d   117   (1st    Cir.    2011), which      issued      after

Oliveira     was    sentenced,     the    district        court    erred   in    its

determination that Oliveira's Massachusetts convictions of larceny

from a person did not qualify as "crimes of violence" under the

Armed Career Criminal Act ("ACCA"), 18             U.S.C. § 924(e).        We also

agree with the government and the district court that Oliveira's

Massachusetts conviction of resisting arrest qualifies as a third

ACCA predicate.1      Therefore, we vacate the sentence and remand for

Oliveira to be resentenced under the ACCA.

           The      government    identified       four    prior    Massachusetts

convictions which it maintained qualified as predicates under the

ACCA's residual clause: two convictions of larceny from a person,

one conviction of resisting arrest, and one conviction of assault

and battery on a prison guard.           Oliveira challenged the use of any


     1
        Because only three predicates are required, it is
unnecessary to address Oliveira's argument that his conviction of
assault and battery on a prison guard did not qualify as an ACCA
predicate, an issue which the district court did not reach.
However, we note that we recently held that a Massachusetts
conviction for assault and battery on a correctional officer
qualifies categorically as a crime of violence under U.S.S.G. §
2K2.1(a)(2). See United States v. Jonas, 689 F.3d 83, 89 (1st Cir.
2012).

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of those convictions as ACCA predicates on the ground that they did

not qualify as "violent felonies" under the ACCA's residual clause.

The district court agreed that the Massachusetts offense of larceny

from a person did not qualify. See United States v. Oliveira, 798

F.Supp.2d 319, 330-333 (D.Mass. 2011).

            After Oliveira was sentenced, and while this appeal was

pending, we ruled in Rodriguez, supra, that the Massachusetts

offense of larceny from a person qualifies as a "violent felony"

under the ACCA's residual clause, reaffirming our earlier holding

in United States v. DeJesus, 984 F.2d 21, 25 (1st Cir. 1993), that

the offense was a "crime of violence" under the residual clause of

U.S.S.G. § 4B1.2(a)(2). See Rodriguez, 659 F.3d at 119-120.

Oliveira does not dispute that Rodriguez applies to his case, but

he argues instead that it was wrongly decided.             We are precluded

from considering that argument by the law of the circuit doctrine

under which we are "bound by a prior panel decision, absent any

intervening authority." United States v. Grupee, 682 F.3d 143, 149

(1st Cir. 2012).

            The   law    of   the    circuit    doctrine   also      forecloses

Oliveira's   other      challenges    to    being   sentenced   as    a   career

criminal.    We recently reaffirmed our holding in United States v.

Almenas, 553 F.3d 27, 32-35 (1st Cir. 2009) and United States v.

Weekes, 611 F.3d 68, 72-73 (1st Cir. 2010), that a Massachusetts

conviction for resisting arrest qualifies as a "crime of violence"


                                      -3-
under the Guidelines. See Grupee, 682 F.3d at 149.   We declined to

consider Grupee's contention that Almenas erred in applying the

test under Begay v. United States, 553 U.S. 137 (2008), "owing to

the law of the circuit doctrine." Id.      Oliveira has failed to

identify any supervening authority that would bring his case within

an exception to the law of the circuit doctrine.

          Similarly, Oliveira's constitutional challenge to the

residual clause is foreclosed by our decision in United States v.

Hart, 674 F.3d 33, 41 n.3 (1st Cir. 2012) (rejecting argument that

residual clause is unconstitutionally vague).

          The sentence is vacated and the case is remanded for

resentencing in accordance with this opinion.




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