          United States Court of Appeals
                     For the First Circuit


No. 15-1136

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                           JAMES DAWN,

                      Defendant, Appellant.


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

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                             Before

                   Kayatta, Stahl, and Barron,
                         Circuit Judges.


     Robert F. Hennessy and Thompson & Thompson, PC on brief, for
appellant.
     Mark T. Quinlivan, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief, for appellee.



                        November 16, 2016
             BARRON,    Circuit      Judge.     James   Dawn     appeals       his

convictions for federal firearms offenses on the ground that the

District Court, in accepting his guilty pleas, did not conduct a

proper inquiry under Rule 11 of the Federal Rules of Criminal

Procedure.        Dawn also appeals his sentence, arguing that the

District Court erred in classifying him as an armed career criminal

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

We affirm both the convictions and the sentence.

                                       I.

             Dawn was indicted in March 2014 for dealing in firearms

without a license, 18 U.S.C. § 922(a)(1)(A), and for being a felon

in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1).

He initially pled not guilty. In July, however, his counsel, Jaime

Zambrana, informed the Magistrate Judge assigned to the case that

Dawn intended to change his plea to guilty.

             At the change of plea hearing in September, the District

Court began by stating that "the purpose of this hearing is to

satisfy me that what appears to be your intention to plead guilty

is a knowing and voluntary act." The District Court then proceeded

to   ask   Dawn   a   range   of   questions    concerning   his     ability   to

understand the charges against him and to make a decision to plead

guilty to them.

             At   the   District    Court's     direction,     the   government

informed Dawn that he could face a sentence of up to ten years for


                                        - 2 -
the felon-in-possession charge, but if he were determined to be an

"armed career criminal," he would face a maximum sentence of life

imprisonment and a mandatory minimum sentence of fifteen years.

That statement was a reference to the ACCA, 18 U.S.C. § 924(e),

which applies if a defendant has three previous convictions for a

"violent felony or a serious drug offense."      The government also

informed Dawn that he would face a sentence of up to five years

for dealing in firearms without a license.

          The District Court next asked Dawn, "So, you understand

what the maximum penalties could be in this case, depending on how

I resolve the factual matters here?"     Dawn replied, "Yes, your

Honor."   The District Court then stated, "You understand that.

So, what you are exposing yourself to is potentially those maximum

penalties."   Dawn replied, "Yes, your Honor."    The District Court

went on to describe the rights Dawn would be giving up by pleading

guilty, discuss the evidence that could be presented at trial, and

ask Dawn to enter a plea. The District Court concluded that Dawn's

"decision to plead guilty is a knowing and voluntary act on

[Dawn's] part."

          Dawn then entered a guilty plea.       After entering the

guilty plea, Dawn's attorney, Zambrana, moved to continue the

sentencing hearing.   Zambrana stated that the government intended

to seek a sentence under the ACCA.   Zambrana alleged, incorrectly,

that one of the predicate offenses that the government was relying


                                 - 3 -
upon under the ACCA was Dawn's 2007 conviction for possession with

intent   to     distribute   a     class   D   substance,    in   violation      of

Massachusetts General Laws Chapter 94C, § 32C.              Zambrana requested

more time to allow Dawn to seek to have this conviction vacated.

That motion was heard at the beginning of the scheduled sentencing

hearing.

              At that hearing, Zambrana spoke in support of the motion

to continue sentencing.          Zambrana contended that he was in the

process of challenging two of Dawn's prior state-law convictions

that the government was asserting qualified Dawn as a career

offender under the ACCA: first, the 2007 conviction referenced in

the   motion     to   continue     sentencing,     which    was   not    actually

classified as an ACCA predicate offense in the presentence report;

and   second,    a    conviction    for    trafficking     cocaine,     which   was

classified as an ACCA predicate offense in the presentence report.

The District Court did not grant the requested continuance.                     The

District Court explained that the convictions that Zambrana had

identified in requesting the continuance were relatively old and

that any success that his counsel had in having them vacated could

be addressed in a post-sentencing motion pursuant to Rule 35 of

the Federal Rules of Criminal Procedure.

              The District Court took a brief recess so that Zambrana

could explain to Dawn the process for challenging the sentence by

filing a Rule 35 motion in the event that his challenges to any


                                           - 4 -
prior   state    conviction   on   which     the   sentence   relied   were

successful.     After the recess, the District Court confirmed that

Dawn had the opportunity to review the presentence report and did

not object to it.    The District Court sentenced Dawn to 180 months

of imprisonment -- the mandatory minimum -- and 60 months of

supervised release.    This appeal followed.

                                   II.

            Dawn challenges his convictions on the ground that the

District Court failed to inquire at the Rule 11 hearing whether he

was induced to plead guilty by way of any force, threats, or

promises.       See Fed. R. Crim. P. Rule 11(b)(2) (stating that

"[b]efore accepting a plea of guilty or nolo contendere, the court

must address the defendant personally in open court and determine

that the plea is voluntary and did not result from force, threats,

or promises").     Because Dawn raises this issue for the first time

on appeal, we review only for plain error. United States v. Ortiz-

García, 665 F.3d 279, 285 (1st Cir. 2011).          We find none.

            "In order to establish plain error, a defendant must

show that: (1) an error occurred; (2) the error was plain; (3) the

error affected the defendant's substantial rights; and (4) the

error 'seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.'" Id. (quoting United States

v. Rivera-Maldonado, 560 F.3d 16, 19 (1st Cir. 2009)).          To satisfy

the "substantial rights" prong of the test in this context, the


                                     - 5 -
defendant must show "a reasonable probability that, but for the

error, he would not have entered the plea."     Id. at 286 (quoting

United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)).

          Dawn contends that the purported Rule 11 violation was

clear and obvious, and he contends that this error affected his

substantial rights in the following way.    Dawn argues that if the

District Court had inquired into whether Dawn's decision to plead

guilty had been influenced by improper promises, Dawn would have

disclosed Zambrana's "unfilled and unfulfillable promise to at

least attempt to seek avoidance of the ACCA by collaterally

attacking some of Dawn's prior convictions in state court."    Dawn

contends that, following the disclosure of that "promise," the

District Court would have clarified for Dawn that Zambrana's

promise to challenge those convictions was an empty one because

Zambrana in fact had promised to challenge a conviction that was

not actually classified as an ACCA predicate.    And, further, Dawn

contends, such a clarification by the District Court would have

changed Dawn's expectation as to whether he would be subject to

the ACCA enhancement and thus affected his decision to plead

guilty.   Accordingly, Dawn contends that the District Court's

alleged error in failing to inquire into whether any promises Dawn

received affected his substantial rights.

          There may be some question, as the government contends,

as to whether the District Court's inquiry in this case was clearly


                                 - 6 -
insufficient under Rule 11.    See United States v. Henry, 113 F.3d

37, 41-42 (5th Cir. 1997).    But even if we were to assume that the

District Court did plainly err in not directly inquiring about

whether Dawn's counsel made any promises, Dawn has not shown how,

but for such an error, it is probable that he would not have pled

guilty. Thus, he cannot satisfy the third prong of the plain error

standard.   See Dominguez Benitez, 542 U.S. at 76.

            In this regard, we note that, to support his contention

that Dawn's counsel made an unfulfillable promise to him that

induced his plea, Dawn points only to his counsel's statements in

the criminal proceedings themselves.       And those statements, upon

scrutiny, provide weak support for his contention.

            The first statement Dawn points to is one that Zambrana

made in a pretrial conference prior to the Rule 11 hearing.

Zambrana stated that he was "looking into some of [Dawn's] prior

convictions which have a significant impact on the Guidelines."

But this statement is not itself a promise to Dawn by Zambrana,

nor is it persuasive evidence that Zambrana made the unfulfillable

promise that Dawn contends Zambrana had made and that Dawn argues

is the kind of promise to which Rule 11 refers.

            Dawn does point to two other statements Zambrana made,

each of which post-dates the Rule 11 hearing itself.       The first

appears in Zambrana's motion to continue sentencing.       The second

was made by Zambrana to the court in the hearing on that motion.


                                   - 7 -
But these statements are no more helpful to Dawn than the one just

discussed.     They, too, show merely that Zambrana was planning to

file or had filed motions in state court to challenge certain of

Dawn's prior convictions and thus that Zambrana was looking into

Dawn's prior convictions.       These statements do not show that

Zambrana made the kind of promise to Dawn on which his Rule 11

challenge depends.      Thus, Dawn has not shown that any inquiry by

the District Court into the kind of promise to which Rule 11 refers

actually would have uncovered that a promise of the type Dawn

alleges was made in fact had been made.

             Moreover, the government's evidence against Dawn was

overwhelming, a point that Dawn does not at any point contest in

his briefing to us.        This feature of the case thus further

undermines     Dawn's   contention   that    there   is   a   reasonable

probability that he would not have pled guilty but for the District

Court's failure to conduct the inquiry under Rule 11 that he

contends was required.       See Dominguez Benitez, 542 U.S. at 85

("Other matters that may be relevant . . . are the overall strength

of the Government's case and any possible defenses . . . .        [O]ne

can fairly ask a defendant seeking to withdraw his plea what he

might ever have thought he could gain by going to trial.").1


     1 At the Rule 11 hearing,         the government discussed the
evidence it would put forth if        the case went to trial.   The
government stated that it would        show that, on three separate
occasions, cooperating witnesses      purchased firearms from Dawn,


                                     - 8 -
                                 III.

          Dawn separately argues that the District Court erred in

classifying him as a career offender under the ACCA.       The ACCA

provides a sentence of fifteen years if a defendant commits the

offense of illegally possessing a firearm, in violation of 18

U.S.C. § 922(g), and qualifies as a career offender.       18 U.S.C.

§ 924(e)(1).     A defendant qualifies as a career offender if the

defendant has three predicate offenses.     Id.

          The presentence report listed four convictions that were

claimed to qualify as ACCA predicate offenses: a conviction for

assault and battery with a dangerous weapon, under Massachusetts

General Laws Chapter 265, § 15A(b); a conviction for assault with

a dangerous weapon, under Massachusetts General Laws Chapter 265,

§ 15B(b); and two different convictions for trafficking in cocaine,

under Massachusetts General Laws Chapter 94C, § 32A.       Dawn does

not dispute that two of those convictions -- the convictions for

trafficking in cocaine -- qualify as ACCA predicate offenses

because   they   are   serious   drug   offenses.   See   18   U.S.C.

§ 924(e)(2)(A)(ii).    He does, however, contend that neither of the

other two -- namely, his convictions for assault and battery with

a dangerous weapon and assault with a dangerous weapon -- qualifies

as an ACCA predicate offense because he contends that neither is


with cash, while wearing recording devices. No possible defenses
are apparent from the record, nor does Dawn identify any.


                                   - 9 -
a violent felony under the ACCA.        The ACCA defines a "violent

felony" as "any crime punishable by imprisonment for a term

exceeding one year . . . that has as an element the use, attempted

use, or threatened use of physical force against the person of

another."   18 U.S.C. § 924(e)(2)(B).

            We review de novo the classification of a prior offense

as a violent felony under the ACCA.        United States v. Carrigan,

724 F.3d 39, 48 (1st Cir. 2013).       We have previously held that a

conviction under Massachusetts law for assault with a dangerous

weapon does qualify as a violent felony under 18 U.S.C. § 924(e).

United States v. Whindleton, 797 F.3d 105, 116 (1st Cir. 2015).

Dawn contends that Whindleton was wrongly decided in light of the

Supreme Court's 2015 decision in Johnson v. United States, 135 S.

Ct. 2551 (2015), and our decisions in United States v. Martinez,

762 F.3d 127 (1st Cir. 2014), and United States v. Fish, 758 F.3d

1 (1st Cir. 2014).     But we considered and rejected these same

arguments in United States v. Fields, 823 F.3d 20, 35 & n.12 (1st

Cir. 2016), and United States v. Hudson, 823 F.3d 11, 16-18 (1st

Cir. 2016). Because Dawn does not contest that there are two other

qualifying predicate convictions, the government has identified

three prior convictions that qualify as predicate offenses under

the ACCA.   Accordingly, Dawn's challenge to his sentence fails.

                                 IV.

            For the reasons given, we affirm.


                                  - 10 -
