United States Court of Appeals

For the First Circuit

No. 11-1773

UNITED STATES OF AMERICA,

Appellee,

v.

MIKE K. JONAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

 Thompson, Selya and Dyk,*

Circuit Judges.

Lenore Glaser, with whom Law Office of Lenore Glaser was on

brief, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom

Carmen M. Ortiz, United States Attorney, was on brief, for

appellee.

August 8, 2012

___________

 *Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Mike K. Jonas

argues that, for the purpose of determining the applicability of

the definition of "crime of violence" contained in the career

offender guideline, USSG §4B1.2(a), any use of his Massachusetts

conviction for assault and battery on a correctional officer

(ABCO), Mass. Gen. Laws ch. 265, § 13D, is foreclosed by the

rationale of our prior decision in United States v. Holloway, 630

F.3d 252 (1st Cir. 2011). The government demurs, arguing that we

should apply the rationale of our post-Holloway decision in United

States v. Dancy, 640 F.3d 455 (1st Cir. 2011). The district court

agreed with the government, and so do we.

The relevant facts are susceptible to a succinct summary. 

In the court below, the defendant pleaded guilty to two counts:

possessing counterfeit securities and possessing a firearm as a

felon. 18 U.S.C. §§ 513(a), 922(g)(1). The revised presentence

investigation report recommended a guideline sentencing range (GSR)

of 70 to 87 months. This calculation was driven, in part, by a

provision in the federal sentencing guidelines calling for an 

increased base offense level if a defendant who is convicted of

unlawful firearm possession has previously "sustain[ed] at least

two felony convictions of either a crime of violence or a

controlled substance offense." USSG §2K2.1(a)(2). For this

purpose, the guideline cross-references to USSG §4B1.2(a) to supply

-2-
the definition for a "crime of violence." USSG §2K2.1, comment.

(n.1).

At the disposition hearing, the defendant conceded that

he had a prior drug conviction that constituted a predicate felony

under the career offender guideline. He argued, however, that the

second predicate felony relied upon by the government — his

conviction for ABCO — was not a conviction for a crime of violence

and, thus, could not qualify as the essential second predicate. 

The district court concluded that ABCO was properly classified as

a crime of violence, applied section 2K2.1(a)(2), and — after

varying downward from the GSR, see 18 U.S.C. § 3553(a) — imposed a

60-month incarcerative term. This timely appeal ensued.

This is a rifle-shot appeal: it turns exclusively on the

scope of the phrase "crime of violence" as that phrase is used in

the federal sentencing guidelines. This question engenders de novo

review. United States v. Williams, 529 F.3d 1, 3 (1st Cir. 2008).

Under the career offender guideline, a crime of violence

is any offense punishable by more than one year of imprisonment

that 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 injury to another." USSG §4B1.2(a). 

This definition is nearly identical to the definition of a "violent

-3-
felony" contained in the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(2)(B). Recognizing this resemblance, courts

consistently have held that decisions construing one of these

phrases generally inform the construction of the other. See, e.g.,

Holloway, 630 F.3d at 254 n.1; United States v. Richards, 456 F.3d

260, 263 n.2 (1st Cir. 2006). Consequently, we refer to both

bodies of jurisprudence seamlessly.1

 See United States v. Hart,

674 F.3d 33, 41 n.5 (1st Cir. 2012); United States v. Willings, 588

F.3d 56, 58 n.2 (1st Cir. 2009).

Under binding Supreme Court precedent, we must take a

categorical approach to the question of whether a crime ranks as a

crime of violence. See Sykes v. United States, 131 S. Ct. 2267,

2272 (2011). Our focus is on the elements of the offense as

delineated in the statute of conviction (as judicially glossed) and

the standard charging language. See Johnson v. United States, 130

S. Ct. 1265, 1269-70 (2010); Dancy, 640 F.3d at 468. This paradigm

requires that we eschew consideration of the offender's particular

conduct. See Sykes, 131 S. Ct. at 2272; James v. United States,

550 U.S. 192, 202 (2007).

1 This congruence between "crime of violence" and "violent

felony" is especially important here. The key precedents upon

which the parties rely (Holloway and Dancy) are both cases

involving whether or not a particular offense constitutes a violent

felony under the ACCA. The reasoning of those cases is fully

transferrable to the precincts patrolled by the career offender

guideline.

-4-
Under the relevant Massachusetts statute, assault and

battery can be committed in various ways — some that may involve

the use of violent force and some that may not. See Holloway, 630

F.3d at 254-60. Thus, the specification set out in section

4B1.2(a)(1), sometimes called the "force clause," Hart, 674 F.3d at

41, is not categorically applicable. See Holloway, 630 F.3d at

254-60. Assuming, favorably to the defendant, that simple assault

and battery and assault and battery on a correctional officer are

analyzed in the same way for purposes of the force clause — and the

government has not suggested the contrary — for ABCO to be regarded

categorically as a crime of violence, it must fit within the

"otherwise clause" of the definition set out in the career offender

guideline. So viewed, the putative predicate must be an offense

that "otherwise involves conduct that presents a serious potential

risk of physical injury to another." USSG §4B1.2(a)(2).

To qualify as a crime of violence under the otherwise

clause, an offense must "(1) present a degree of risk similar to

the degree of risk posed by the enumerated offenses, and (2) be

roughly similar in kind to the enumerated offenses." Hart, 674

F.3d at 41 (citing Begay v. United States, 553 U.S. 137, 143

(2008)). With respect to the first of these criteria (degree of

risk), "the proper inquiry is whether the conduct encompassed by

the elements of the offense, in the ordinary case, presents a

serious potential risk of injury to another." James, 550 U.S. at

-5-
208. This determination hinges on a commonsense assessment of the

risk of violence that typically ensues during the commission of the

crime. See Sykes, 131 S. Ct. at 2273-74; James, 550 U.S. at 203-

07.

With respect to the second criterion (similar in kind),

offenses that involve stringent mens rea requirements are easily

captured. See Sykes, 131 S. Ct. at 2275-76; United States v.

Grupee, 682 F.3d 143, 149 (1st Cir. 2012) (Souter, J.). Strict

liability, negligence, or recklessness crimes are more elusive. 

See Sykes, 131 S. Ct. at 2275-76; Begay, 553 U.S. at 144-46.

The Supreme Court has crafted a touchstone for the

similar in kind inquiry: courts must ask whether, categorically

speaking, putative predicate offenses "involve[] purposeful,

violent, and aggressive conduct." Williams, 529 F.3d at 7 (citing

Begay, 553 U.S. at 144-45). This question is sometimes difficult

to answer. "Adjectives like 'purposeful' and 'aggressive' denote

qualities that are ineluctably manifested in degree and appear in

different combinations; they are, therefore, imprecise aids." Id.

Mindful of this inherent imprecision, we have emphasized that an

offense need only be "'roughly similar' in kind to the enumerated

offenses." Dancy, 640 F.3d at 468 (quoting Begay, 553 U.S. at

143).

In the case at hand, the defendant concedes that he was

charged with, and convicted of, ABCO. He argues, however, that

-6-
ABCO fails both the degree of risk and similar in kind

requirements. Determining whether these requirements are satisfied

is a matter of federal law. See United States v. Giggey, 551 F.3d

27, 39 (1st Cir. 2008) (en banc).

 We start with the similar in kind inquiry. The

defendant's argument is straightforward. It depends on Holloway,

in which we held that "because the Massachusetts simple assault and

battery statute covers multiple offenses, at least one of which,

reckless battery, is categorically not a violent felony, a court

may only rely on an assault and battery conviction if it can

ascertain that the defendant was convicted of the violent form of

the offense (e.g., harmful battery)." 630 F.3d at 262.2

 The

defendant notes that there is nothing in the charging language that

indicates how he committed ABCO. Building on this foundation, he

maintains that ABCO, if committed recklessly, is no different than

the simple assault and battery offense that Holloway determined did

not qualify as a violent felony. See id. (discussing Mass. Gen.

Laws ch. 265, § 13A). As he sees it, the mere fact that an assault

2

 Under Massachusetts law, simple assault and battery is a

lesser included offense of assault and battery on a public

employee. See Commonwealth v. Colon, 958 N.E.2d 56, 68 (Mass. App.

Ct. 2011); Commonwealth v. Rosario, 430 N.E.2d 866, 866 (Mass. App.

Ct. 1982). Both assault and battery on a correctional officer and

assault and battery on a police officer are species of the broader

crime of assault and battery on a public employee. See Mass. Gen.

Laws ch. 265, § 13D.

-7-
and battery is committed on a particular type of person (e.g., a

correctional officer) does not transmogrify the act.

Holloway, however, cannot be read in a vacuum. In Dancy,

640 F.3d at 467-70, decided a few months after Holloway, we

distinguished simple assault and battery, Mass. Gen. Laws ch. 265,

§ 13A, from assault and battery on a police officer (ABPO), id.

§ 13D. We explained that, under the Massachusetts statute, ABPO

requires the prosecution to prove three elements in addition to

those needed for simple assault and battery: that the victim was a

police officer, that he was acting in his official capacity, and

that the defendant knew as much. See Dancy, 640 F.3d at 468;

accord Mass. Gen. Laws ch. 277, § 79 (setting forth standard

charging language); Commonwealth v. Colon, 958 N.E.2d 56, 68 (Mass.

App. Ct. 2011). We then concluded that even under a recklessness

theory of assault and battery liability, the additional elements

required for an ABPO conviction ensure that "purposeful conduct is

the norm," making ABPO sufficiently similar in kind to the

enumerated offenses to qualify as a violent felony. Dancy, 640

F.3d at 466-69 (citing with approval United States v. Fernandez,

121 F.3d 777, 779-80 (1st Cir. 1997), for the proposition that ABPO

is a categorical crime of violence).

Dancy is the beacon by which we must steer. The text of

Mass. Gen. Laws ch. 265, § 13D is generic in nature, proscribing

assault and battery on a "public employee." It "is separate and

-8-
distinct from the statute criminalizing simple [assault and

battery]." Dancy, 640 F.3d at 468. It applies in exactly the same

way to police officers, see Colon, 958 N.E.2d at 68, as to

correctional officers, see Commonwealth v. Ford, 468 N.E.2d 663,

665 (Mass. App. Ct. 1984). And even though the Massachusetts

Supreme Judicial Court has not definitively set out the elements

required for ABCO under section 13D, there is no principled basis

for believing that the elements are any different than the elements

set out for ABPO. Cf. Commonwealth v. Deschaine, 932 N.E.2d 854,

861 (Mass. App. Ct. 2010) (explaining that a conviction for assault

and battery on a correctional officer under Mass. Gen. Laws ch.

127, § 38B requires the Commonwealth "to prove the defendant knew

that the person he struck was a correction officer."). Indeed, the

defendant appears to concede that the elements of ABCO parallel

those of ABPO. See Appellant's Br. at 6 ("The crime of assault and

battery on a correctional officer adds, as an element of the

offense, that the victim was a correctional officer, known to the

defendant as such, and acting in his or her official capacity.").

As in ABPO, the additional elements of ABCO — that the

victim was a correctional officer, that he was acting in an

official capacity, and that the defendant knew as much — ensure

that "purposeful conduct is the norm." See Dancy, 640 F.3d at 468-

70. This means, then, that ABCO — like ABPO — is roughly similar

-9-
in kind to the offenses enumerated in connection with the

"otherwise" clause of section 4B1.2(a)(2).

The defendant's fallback position is that ABCO presents

a substantially lesser degree of risk than ABPO and, therefore,

falls below the level of risk presented by the enumerated offenses. 

The defendant contends that, unlike police officers, correctional

officers are usually unarmed and interact informally with

prisoners. This contention rings hollow.

The proper comparison in a degree of risk analysis is

between the risks typically accompanying the offense of conviction

and the risks typically accompanying the offenses enumerated in

connection with the "otherwise" clause of the career offender

guideline. See Hart, 674 F.3d at 41. Such a comparison guides the

requisite determination as to whether categorically speaking a

particular offense "presents a serious potential risk of physical

injury to another." Sykes, 131 S. Ct. at 2273; see James, 550 U.S.

at 203. By its very nature, this is an "inherently probabilistic"

analysis. Dancy, 640 F.3d at 470 (internal quotation marks

omitted).

We have little difficulty in concluding that ABCO

typically presents a serious potential risk of injury to another

that is not only comparable to, but arguably greater than, the

risks typically associated with the offenses enumerated in

connection with the "otherwise" clause of the career offender

-10-
guideline. We previously have held that assault on a prison guard,

by its nature, presents a serious risk of injury to another.3 See

United States v. Gignac, 119 F.3d 67, 69 (1st Cir. 1997). 

"'Prisons are inherently dangerous institutions,' where prison

guards are greatly outnumbered by inmates — many of whom have a

history of violence or of aggressive tendencies." United States v.

Johnson, 616 F.3d 85, 94 (2d Cir. 2010) (citation omitted) (quoting

Lewis v. Casey, 518 U.S. 343, 391 (1996)); accord Johnson v.

California, 543 U.S. 499, 515 (2005); Hudson v. Palmer, 468 U.S.

517, 526 (1984). "Guards and inmates co-exist in direct and

intimate contact. Tension between them is unremitting." Wolff v.

McDonnell, 418 U.S. 539, 562 (1974).

Moreover, a degree of risk analysis must take into

account the dangers that third parties are likely to create. See

Williams, 529 F.3d at 5-8. Assault and battery on a correctional

officer (even an unarmed correctional officer) is like throwing a

lit match into a tinder box: it inevitably "creates a risk that

fellow inmates will join in the disturbance, oppose it with force,

or simply use its occurrence to engage in other acts of violence." 

3 To be sure, neither the Massachusetts statutes nor the case

law requires that a correctional officer work in a prison. But

"[i]t need not be the case that 'every conceivable factual offense

covered by a statute must necessarily present a serious potential

risk of injury before the offense can be deemed a violent felony.'" 

Dancy, 640 F.3d at 470 (quoting James, 550 U.S. at 208). In the

ordinary course, correctional officers work at correctional

facilities, so the categorical approach directs our attention to

that environment.

-11-
Johnson, 616 F.3d at 94. The setting is the key: "[t]he risk of

physical injury arises not only from this confrontation, but also

from the fact that prisons are like powder kegs, where even the

slightest disturbance can have explosive consequences." Id.

To say more would be to paint the lily. Common sense

dictates that ABCO, categorically speaking, presents a sufficiently

serious potential risk of injury to another to satisfy the degree

of risk requirement. It is, moreover, sufficiently similar in kind

to the offenses enumerated in connection with the "otherwise"

clause of the career offender guideline. Under the categorical

approach, no more is exigible.

We need go no further. For the reasons elucidated above,

we hold that the claim of sentencing error is without merit.

Affirmed.

-12-