United States v. Fernandez

• Court: Court of Appeals for the First Circuit
• Decided: August 6, 1997
• Docket: 96-1655
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


                                ____________________


          No. 96-1655


                                   UNITED STATES,


                                      Appellee,


                                         v.


                                  MARTIN FERNANDEZ,


                               Defendant - Appellant.


                                ____________________


                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF MASSACHUSETTS


                    [Hon. William G. Young, U.S. District Judge]


                                ____________________


                                       Before


                           Cyr and Lynch, Circuit Judges,


                           and McAuliffe, District Judge.


                                _____________________


               Miriam Conrad, Federal Defender Officer, for appellant.

               Robert E. Richardson, Assistant United States Attorney, with

          whom Donald 
                      K. 
                         Stern, United States Attorney, was on brief for

          appellee.


____________________


                                   August 6, 1997

                                ____________________


Of the District of New Hampshire, sitting by designation.



McAULIFFE, 
                              District Judge
                                            . Martin Fernandez pled guilty


          to an unarmed bank robbery charge in February of 1996.    See 18


          U.S.C. S 2133(a). The district judge (Young, J.), confronted with


          Fernandez' criminal history, found him to be a career offender and


          sentenced him accordingly.  See U.S.S.G. S 4B1.1.


                    On appeal Fernandez challenges his sentence, arguing that


          he did not qualify as a career offender under the sentencing


          guidelines. He says the district court's contrary finding was


          legally incorrect for at least two reasons: (1) the district judge


          erred when he concluded that the Massachusetts crime of assault and


          battery on a police officer (one of Fernandez' predicate offenses)


          is, categorically, a crime of violence within the meaning of


          U.S.S.G. S 4B1.1; and (2) the district judge's alternate finding


          (that the facts underlying Fernandez' offense establish it as a


          crime of violence) was based on an impermissible judicial inquiry


          into the discrete circumstances of his offense conduct.


                    Because we conclude that the Massachusetts crime of


          assault and battery on a police officer is, categorically, a crime


          of violence within the meaning of U.S.S.G. S 4B1.1, we need not


          address Fernandez' contention that the trial judge's factual


          inquiry was inconsistent with the mandate of    Taylor v.  United


          States, 495 U.S. 575 (1990), and we affirm the sentence.


                                     Background


                    Fernandez' career offender status rested on two


          underlying state convictions: assault and battery by means of a


          dangerous weapon and assault and battery upon a police officer.


          Fernandez did not object to classification of the former as a



"crime of violence" within the meaning of U.S.S.G. S 4B1.1. He


          did, however, object to consideration of his prior assault and


          battery upon a police officer as a "crime of violence." The


          district judge overruled Fernandez' objections, determined that he


          was indeed a career offender, and sentenced him at the low end of


          the applicable guideline range.


                    On appeal, Fernandez argues that because, under


          Massachusetts law, the crime of assault and battery upon a police


          officer can include both violent and non-violent variants, the


          district judge erred when he classified the offense as one of


          violence within the meaning of the career offender provisions of


          the guidelines. Fernandez' guideline sentencing range would have


          been more favorable to him if the offense had not been so


          classified.


                                     Discussion


                    Whether Fernandez' prior conviction for assaulting a


          police officer is properly deemed a predicate "crime of violence"


          under U.S.S.G. S 4B1.1 is a question of law, which we review   de


          novo. See 
                    United States
                                  v. 
                                     Winter, 22 F.3d 15, 18 (1st Cir. 1994).


                    For purposes of the career offender provisions, the


          sentencing guidelines define "crime of violence" as:


               (1)  [A]ny offense under federal or state law

                    punishable by imprisonment for a term

                    exceeding one year 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 of a dwelling, arson, or

                    extortion, involves use of explosives,     or


                                         -3-



otherwise  
                              involves  
                                        conduct  
                                                that  
                                                      presents  
                                                                a

                    serious 
                            potential 
                                      risk 
                                           of 
                                              physical 
                                                       injury 
                                                               to

                    another.


          U.S.S.G. S 4B1.2 (November 1, 1995) (emphasis supplied). Some


          offenses are easily recognized as crimes of violence because they


          are specifically listed in the guideline (e.g., arson), or because


          an essential element includes the use or threatened use of force


          against another person (e.g., armed robbery).


                    But an offense not listed, and which does not include


          among its elements the use, attempted use, or threatened use of


          force against another person, still might qualify under S 4B1.2 if


          it involves conduct that "presents a serious potential risk of


          physical injury to another." Whether such an offense qualifies on


          that ground is determined according to a standard generic approach,


          "in which inquiry is restricted to the statutory definition[] of


          the prior offense[], without regard to the particular facts


          underlying [it]."  United 
                                    States v. Meader, No. 96-2123, 1997 WL


          375003, at *6 (1st Cir. July 11, 1997);  accord United 
                                                                 States v.


          Schofield, 114 F.3d 350, 351 (1st Cir. 1997); Winter, 22 F.3d at


          18; 
             cf. 
                 Taylor v. 
                           United States
                                        , 495 U.S. 575, 600 (1990) (adopting


          a similar categorical approach when determining whether a crime is


          one of violence under the armed career criminal provisions of 18


          U.S.C. S 924(e)(2)(B)(ii)).


                    As this court has previously held:


                    [R]ather than investigating the facts and

                    circumstances of each earlier conviction, an

                    inquiring court, in the usual situation, looks

                    exclusively to the crime as the statute of

                    conviction defined it; or, put another way,

                    the court examines only the statutory


                                         -4-



formulation of the predicate crime in order to

                    ascertain whether that crime is a crime of

                    violence for purposes of the federal

                    sentencing guidelines.


          United 
                 States v. DeLuca, 17 F.3d 6, 8 (1st Cir. 1994) (footnote


          omitted). Only under limited circumstances may a court look beyond


          the elements of the crime as statutorily defined and examine


          documents, such as charging papers or jury instructions, in an


          effort to determine whether the predicate offense should count for


          career offender purposes.   See Taylor, 495 U.S. at 602;   United


          States v. DeJesus, 984 F.2d 21, 23 n.5 (1st Cir. 1993).


                    Here, Fernandez argues that assault and battery on a


          police officer should not be classified as a crime of violence


          under S 4B1.1 because the criminal statute defining his offense


          (Mass. Gen. L. ch. 265, S 13D) criminalizes both violent and non-


          violent conduct. His point about the statute's scope finds support


          in this court's opinion in United States v. Harris, 964 F.2d 1234


          (1st Cir. 1992), where we noted: "The Massachusetts 'assault and


          battery' statute covers two separate crimes -- one involving actual


          (or potential) physical harm and the other involving a


          'nonconsensual' but unharmful touching."  Id. at 1236.  Because


Under the Massachusetts criminal code, both simple assault and

          battery (Mass. Gen. L. ch. 265, S 13A) and assault and battery upon

          a police officer (Mass. Gen. L. ch. 265, S 13D) are specific intent

          crimes.  Compare Commonwealth v. Chasson, 423 N.E.2d 306, 311 n.4

          (Mass. 1981) ("A conviction of assault and battery requires a

          finding of an intentional striking of the victim.")          with

          Commonwealth v. 
                         Moore, 632 N.E.2d 1234, 1238 (Mass. App. Ct. 1994)

          ("The offense of assault and battery on a police officer requires

          a specific intent to strike a police officer."). The only

          substantive distinction between the elements of those offenses is

          that with regard to the latter, the defendant must know that the


                                         -5-



both violent and non-violent conduct is covered by the statute, and


          because his prior conviction could have been based on the non-


          violent variant of assault and battery upon a police officer,


          Fernandez says his prior offense should not have been counted in


          deciding his career offender status.


                    Although we have not directly addressed the precise issue


          Fernandez raises, we have implied that assault and battery upon a


          police officer, in violation of Mass. Gen. L. ch. 265, S 13D, is


          properly considered a "crime of violence" for federal sentencing


          guidelines purposes.  See United 
                                           States v. Santiago, 83 F.3d 20,


          26-27 (1st Cir. 1996) (holding that although the defendant was


          sentenced to less than one year in prison, his conviction for


          assault and battery against a police officer constituted a


          "predicate offense[] within the purview of the career offender


          guideline."); United States v. Pratt, 913 F.2d 982, 993 (1st Cir.


          1990) (holding that defendant's state misdemeanor convictions, two


          of which were for assault and battery on a police officer,


          constituted predicate "crimes of violence" under U.S.S.G.


          S 4B1.1.); see also United States v. Tracy, 36 F.3d 187, 199 (1st


          Cir. 1994) (holding that defendant had adequate notice of the


          government's intention, for sentencing purposes, to rely upon his


          state conviction for assault and battery upon a police officer and


victim is a police officer, acting in the course of his or her

          official duties. Accordingly, for the purposes of this discussion,

          we will assume that our reasoning in Harris, supra, applies with

          equal force to the crime of assault and battery upon a police

          officer and, therefore, that it is possible to commit that crime by

          means of a nonconsensual, but unharmful touching of a police

          officer. 


                                         -6-



concluding that the district court did not err in considering


          defendant's conviction in enhancing his sentence under the Armed


          Career Criminal Act.), cert. denied, 115 S. Ct. 1717 (1995).


                    In any event, that Fernandez 
                                               might have been convicted of


          the non-violent variety of assault and battery upon a police


          officer (looking just at the record of conviction and the


          Massachusetts statute) does not undermine our conclusion that the


          crime is, for purposes of U.S.S.G. S 4B1.1, properly categorized as


          a crime of violence. As we have said, the important point


                    is not the breadth of the statutory sweep but

                    the degree of risk, expressed in terms of the

                    probability of physical harm presented by the

                    mine-run of conduct that falls within the

                    heartland of the statute. Applying this test

                    in the post- Taylor era, we have repeatedly

                    classified as crimes of violence offenses in

                    which actual or threatened force against

                    another person is likely, although by no means

                    certain.


          DeJesus, 984 F.2d at 24.


                    It would seem self-evident that assault and battery upon


          a police officer usually involves force against another, and so


          meets that standard. At a minimum, assault and battery upon a


          police officer requires purposeful and unwelcomed contact with a


          person the defendant knows to be a law enforcement officer actually


          engaged in the performance of official duties. 
                                                        See 
                                                            Commonwealth v.


          Moore, 632 N.E.2d 1234, 1238 (Mass. App. Ct. 1994). While it is


          true that neither violence, nor the use of force, is an essential


          element of the crime as statutorily defined, still, violence, the


          use of force, and a serious risk of physical harm are all likely to


-7-



accompany an assault and battery upon a police officer.      See,


          e.g., Winter, 22 F.3d at 20 ("A categorical approach is not


          concerned with testing either the outer limits of statutory


          language or the myriad of possibilities girdled by that language;


          instead, a categorical approach is concerned with the usual type of


          conduct that the statute purports to proscribe.").


                    Our conclusion is entirely consistent with our holding in


          United  
                 States v.   Harris,  supra. While we acknowledge that


          Massachusetts does criminalize both violent and non-violent


          assaults upon police officers in the same criminal statute, we also


          necessarily recognize that the conduct proscribed by the statute


          nearly always involves the intentional striking of a police officer


          while in the performance of official duty. This nearly always


          poses a serious risk of actual or potential physical force and the


Recent Massachusetts cases in which the defendant was charged

          with assault and battery upon a police officer reveal, not

          surprisingly, the consistent involvement of physical force and risk

          of injury. Each reported case involved actual (not merely

          threatened) use of force by the defendant and a serious risk of

          injury to the officer or another.  See Commonwealth v. Gogan, 449

          N.E.2d 365 (Mass. 1983) (defendant resisted arrest, struggled with

          officer, and fell to ground on top of officer);  Commonwealth v.

          Gagnon, 643 N.E.2d 1045 (Mass. App. Ct. 1994) (defendant convicted

          of masked armed robbery, assault with intent to murder, attempted

          murder, and assault and battery upon a police officer), modified,

          645 N.E.2d 696 (Mass. 1995); 
                                      Commonwealth v. 
                                                     Moore, 632 N.E.2d 1234

          (Mass. App. Ct. 1994) (defendant grabbed officer's wrist and

          dragged him along road with his vehicle); 
                                                   Commonwealth v. 
                                                                   Collins,

          627 N.E.2d 941 (Mass. App. Ct. 1994) (defendant head-butted officer

          in jaw); Commonwealth v. McCrohan, 610 N.E.2d 326 (Mass. App. Ct.

          1993) (defendant initiated a violent struggle with two police

          officers); Commonwealth v. Holmes, 609 N.E.2d 489 (Mass. App. Ct.

          1993) (defendant struck officer with car door, knocking him to the

          ground); Commonwealth v. Gonzalez, 500 N.E.2d 287 (Mass. App. Ct.

          1986) (defendant struck officer).


                                         -8-



likelihood of physical injury -- to the police officer initially,


          and to the perpetrator (and even the public) subsequently, when the


          officer reacts or attempts to subdue the offender. That law


          enforcement officers usually carry weapons when on duty only


          heightens the serious risk of injury associated with such an


          assault.


                    Accordingly, we hold that assault and battery upon a


          police officer, in violation of Mass. Gen. L. ch. 265, S 13D, is


          categorically a crime of violence within the meaning of the career


          offender provisions of the sentencing guidelines, U.S.S.G. S 4B1.1,


          notwithstanding that its statutory definition admits a non-violent


          means of commission.


                                     Conclusion


                    For the foregoing reasons, we hold that an assault and


          battery upon a police officer, in violation of Mass. Gen. L.


          ch. 265, S 13D, is categorically a crime of violence under U.S.S.G.


          S 4B1.1. Accordingly, the district judge's conclusion that


          Fernandez is a career offender under the guidelines, and the


          sentence imposed, are affirmed.


Of course, a defendant may, in an appropriate case, seek relief

          under the guidelines by filing a departure motion if his or her

          predicate offense actually involved the non-violent form of assault

          and battery on a police officer. This, however, is not such a

          case. Fernandez did not attempt to show that he actually committed

          a non-violent form of assault and battery upon a police officer.

          Instead, he has simply asserted that because the underlying state

          statute criminalizes both violent and non-violent conduct alike,

          that crime cannot, as a matter of law, constitute a "crime of

          violence" for purposes of determining his career offender status

          for federal sentencing purposes.


                                         -9-