          United States Court of Appeals
                        For the First Circuit
 
 
No. 13-1822

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                          TREZJUAN THOMPSON,

                         Defendant, Appellant.
 

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

              [Hon. D. Brock Hornby, U.S. District Judge]
 

                                 Before
                          Howard, Chief Judge,
                   Lynch and Barron, Circuit Judges.
                                    

     Mary Davis, with whom Tisdale & Davis, P.A. was on brief, for
appellant.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
                                    
                                    
                            March 22, 2017
                                    
                                    
                             PER CURIAM.                       Defendant-Appellant Trezjuan Thompson pled

guilty to drug conspiracy and arson charges.                                               Before sentencing,

he moved to withdraw his plea, primarily arguing that he did not

have              the          opportunity                     to   review    personally   certain   discovery

materials.

                             The district court denied Thompson's motion, United

States v. Thompson, No. 2:10-cr-200-DBH, 2013 WL 1809659 (D. Me.

Apr. 29, 2013), and sentenced him to 327 months' imprisonment

based, in part, on its finding that Thompson was a career offender

under the sentencing guidelines.                                             See U.S.S.G. §4B1.1.    One of the

predicate                         offenses                     supporting     Thompson's    career    offender

designation was a 2006 Massachusetts conviction for assault and

battery with a dangerous weapon ("ABDW").                                            See Mass. Gen. Laws ch.

265, § 15A(b).                                 The court held that the ABDW conviction qualified

as a "crime of violence" under the so-called "residual clause" of

U.S.S.G. §4B1.2(a)(2).1




                                                            
              1
       The relevant subsection defined "crime of violence" to
include an offense that "is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury
to another." U.S.S.G. §4B1.2(a)(2) (2013) (emphasis added). The
underscored language, often referred to as the residual clause,
has since been stricken from the guideline.        See Sentencing
Guidelines for United States Courts, 81 Fed. Reg. 4741, 4742 (Jan.
27, 2016).

                                                                      - 2 -
                             Thompson's opening brief raises only a single issue,

namely, the correctness of the district court's denial of the

motion to withdraw his guilty plea.2                                             This challenge need not

detain us long.                                    In short, we perceive no abuse of discretion in

the district court's thorough treatment of the matter.                                              See United

States v. Gates, 709 F.3d 58, 69 (1st Cir. 2013).                                                And, contrary

to his contention on appeal, Thompson was not entitled to a hearing

because "[t]he district judge had everything that he needed in the

paper record" to dispose of the motion. United States v. Chambers,

710 F.3d 23, 30 (1st Cir. 2013).

                             During the pendency of Thompson's appeal, another issue

arose.                 The Supreme Court, in Johnson v. United States, 135 S. Ct.

2551 (2015), held that the residual clause of the Armed Career

Criminal                     Act's                ("ACCA")         definition   of    "violent    felony"    was

unconstitutionally                                        vague.     The   district   court's    finding    that

Thompson qualified as a career offender was predicated upon the

applicable guideline's identical residual clause.                                                   Thompson's

opening brief, which was filed before Johnson, did not challenge

any aspect of his sentence, much less argue that the residual

clause was unconstitutionally vague.                                            Thompson raised the issue

                                                            
              2
      Thompson has also filed a supplemental pro se brief. Because
the claims raised therein "lack arguable merit," we decline to
address them specifically. United States v. Rose, 802 F.3d 114,
117 (1st Cir. 2015).

                                                                      - 3 -
for the first time in a citation of supplemental authority pursuant

to Federal Rule of Appellate Procedure 28(j), requesting remand in

light of Johnson.                                     We ordered supplemental briefing.       In response,

the           government                         conceded      that   Johnson   invalidated    the   career

offender guideline's residual clause, but argued that Thompson's

ABDW conviction fell within the separate "elements" or "force"

clause.3

                             Subsequently, in Beckles v. United States, ___ U.S ___,

No. 15-8544, slip op. (Mar. 6, 2017), the Supreme Court squarely

held that Johnson does not apply to the career offender guideline.

This is because the sentencing guidelines, unlike the ACCA, "are

not subject to a vagueness challenge under the Due Process Clause."

Id. at 5.                      We are not bound by the government's concession, which,

while understandable before Beckles,4 turned out to be incorrect.

                                                            
              3
        The force clause includes any offense punishable by
imprisonment for more than one year that "has as an element the
use, attempted use, or threatened use of physical force against
the person of another." U.S.S.G. §4B1.2(a)(1).

              4
       The Supreme Court's decision in Beckles resolved a four to
one circuit split on Johnson's applicability to the career offender
guideline. Four circuits had applied Johnson, while only one had
declined to do so. See United States v. Hurlburt, 835 F.3d 715,
725 (7th Cir. 2016) (applying Johnson); United States v. Pawlak,
822 F.3d 902, 911 (6th Cir. 2016) (same); United States v. Madrid,
805 F.3d 1204, 1211 (10th Cir. 2015) (same); United States v.
Townsend, 638 F. App'x 172, 178 (3d Cir. 2015) (unpublished)
(same). But see United States v. Matchett, 802 F.3d 1185, 1194-
95 (11th Cir. 2015) (declining to apply Johnson).      And, in the
lone decision holding that Johnson did not apply, four judges
dissented from the court's subsequent denial of rehearing en banc.
                               - 4 -
See United States v. Sánchez-Berríos, 424 F.3d 65, 81 (1st Cir.

2005) ("A concession by either party in a criminal case as to a

legal conclusion is not binding on an appellate court.").                                     In

deciding whether to accept a concession, we consider: (1) "whether

the issue is recurrent so [a] decision would give guidance to the

district courts"; (2) "whether it would be unseemly to accept,

even arguendo, a mistaken legal proposition and reason from it to

decide the case"; and (3) "whether the issues are technical and

complex and not explored carefully in existing decisions so that

adversary briefing would be critical."                                 United States v. Mescual-

Cruz, 387 F.3d 1, 8 n.2 (1st Cir. 2004).                                Johnson's applicability

to the career offender guideline has proven to be a frequently

recurring issue in this circuit and, in light of Beckles, the

proper resolution of this issue is crystal clear.                                Accordingly, we

"ignore the government's concession" and "follow [the Supreme


                                                            
See generally United States v. Matchett, 837 F.3d 1118 (11th Cir.
2016).

     Moreover, prior to Beckles, several district courts in our
circuit had applied Johnson to the career offender guideline. See,
e.g., United States v. Flannery, No. 11-cr-79-M, 2017 WL 462145,
at *1 (D.R.I. Feb. 1, 2017); United States v. Ramirez, 189 F. Supp.
3d 290, 296-97 (D. Mass. 2016); Tosi v. United States, No. 16-cv-
05-GZS, 2016 WL 5107078, at *2 (D. Me. Sept. 20, 2016) (noting
"growing consensus" in favor of applying Johnson); Carmona v.
United States, No. 16-cv-282-LM, 2016 WL 3962897, at *2 n.1 (D.N.H.
July 21, 2016) ("assum[ing] without deciding" that Johnson
applied).

                                                               - 5 -
Court's] clear precedent."                                        United States v. Vega-Ortiz, 425 F.3d

20, 22 (1st Cir. 2005).5

                           For             the             foregoing   reasons,   we   AFFIRM   Thompson's

convictions and sentence.




                                                            
              5
       Indeed, it is worth noting that in Beckles itself the
government "agree[d] . . . that the Guidelines are subject to
vagueness challenges."     No. 15-8544, slip op. at 4.        This
concession did not prevent the Court from holding to the contrary.
                              - 6 -
