United States Court of Appeals 

For the First Circuit 

No. 14-2292 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

TODD FAUST, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Michael A. Ponsor, U.S. District Judge] 

Before 

Torruella, Lynch, and Barron, 

 Circuit Judges. 

Myles D. Jacobson, for appellant. 

Randall E. Kromm, Assistant United States Attorney, with whom 

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

April 5, 2017 
-2- 

TORRUELLA, Circuit Judge. Todd Faust ("Faust") entered 

a conditional guilty plea to being a felon in possession of 

ammunition under 18 U.S.C. § 922(g)(1). He contends on appeal 

that his conviction must be overturned because police obtained the 

ammunition in violation of the Fourth Amendment and because the 

statements he made to police during his station house interview 

were obtained as part of a two-step interrogation technique in 

violation of Miranda v. Arizona, 384 U.S. 436 (1966). Faust also 

appeals his sentence on the ground that the district court 

erroneously concluded that his prior convictions for resisting 

arrest, Mass. Gen. Laws ch. 268, § 32B(a), and assault and battery 

on a police officer ("ABPO"), Mass. Gen. Laws ch. 265, § 13A, were 

violent felonies under the Armed Career Criminal Act, 18 U.S.C. 

§ 924(e)(2)(B) ("ACCA"). For the reasons that follow we affirm 

in part and remand in part. 

I. Background 

On May 6, 2011, the Massachusetts Palmer District Court 

issued a warrant for police to search the premises at 220 Pearl 

Street, Apt. 4-R in Springfield, Massachusetts ("Apartment 4-R"), 

as well as the persons of Faust and Kristina Leighty ("Leighty"). 

The warrant application included an affidavit from Sergeant 

Boucher of the Monson Police Department and several other 
-3- 

documents, including several police reports from the Chicopee 

Police Department. 

These documents set forth that on April 22, 2011, the 

home of Joseph Barrett was broken into in Monson, Massachusetts 

(the "Monson robbery"), which resulted in the theft of several 

items, including a wristwatch, a laptop computer, ten rolls of 

pennies, a Leatherman tool, and two women's wallets. That same 

morning, a Monson police officer pulled over a vehicle that Leighty 

was driving as part of a traffic stop. Faust was a passenger in 

the vehicle. The officer had the vehicle towed due to a lack of 

insurance and a revoked registration.1

According to the submitted documents, Leighty and Faust 

remained in the area until Gregory Charbonneau ("Charbonneau") 

picked them up and drove them to Apartment 4-R. Charbonneau told 

police that Leighty gave him $6.50 in rolled pennies as payment 

for the ride. Additionally, Leighty gifted him a watch that was 

later identified as one of the items stolen during the Monson 

robbery.2

 

1 Sergeant Boucher's affidavit noted that Leighty and Faust had 

two large black bags that could have "easily conceal[ed]" the items 

stolen during the Monson robbery. 

2 On May 2, 2011, Charbonneau's home in Chicopee, Massachusetts 

was broken into (the "Chicopee robbery"), which resulted in the 

theft of nine firearms of varying calibers. Charbonneau 

identified pictures of Leighty and Faust, and told police that he 

suspected that Leighty was involved in the robbery of his home. 
-4- 

Sergeant Boucher's affidavit concluded that based on the 

timing of Leighty's gift to Charbonneau, he believed that Leighty 

and Faust were in possession of additional items stolen during the 

Monson robbery. The search warrant was granted on May 6, 2011. 

Pursuant to the warrant, officers from the Massachusetts 

State Police, the Springfield Police Department, the Monson Police 

Department, the Chicopee Police Department, and the Bureau of 

Alcohol, Tobacco, Firearms, and Explosives (collectively, the 

"officers") executed a search of Apartment 4-R, as well as the 

persons of Leighty and Faust.

When the officers entered Apartment 4-R, Leighty told 

the officers that Faust had fled upstairs. The officers followed 

Faust into Apartment 5-R. Upon entering the apartment, two 

officers observed Faust run towards the back door of the apartment 

and drop a black backpack on the floor. Faust was apprehended as 

he attempted to flee out the backdoor and was placed in handcuffs. 

The officers did not advise Faust of his Miranda rights. 

Officer Richard, a Springfield police officer, recovered 

Faust's backpack, in which he found a loaded 9mm pistol and 

ammunition for other weapons. Officer Richard asked Faust if he 

 

Charbonneau identified Leighty as a woman he had been involved 

with for several weeks and whom he knew as "Cory." Charbonneau 

also identified Faust, whom he believed to be Leighty's brother, 

as "Jay." 
-5- 

had a right to be in Apartment 5-R and Faust responded that he did 

not. Faust was held in the back porch of Apartment 5-R while the 

officers assessed the scene. 

Although the sequence of events is not entirely clear 

from the record, it is evident that Faust spoke with Officer 

Richard, Detective Dion of the Chicopee Police Department, and 

Agent Meehan of the Bureau of Alcohol, Tobacco, Firearms and 

Explosives while he was on the back porch. According to Officer 

Richard's testimony, Faust offered, without prompting, to show him 

where other stolen guns were located after Faust overheard Officer 

Richard tell other officers at the scene that the gun in Faust's 

backpack matched one of the guns stolen during the Chicopee 

robbery.3 Officer Richard's testimony suggests that this exchange 

took place before Agent Meehan spoke with Faust. However, Officer 

McNally, a Springfield police officer at the time, testified that 

Faust began talking to Officer Richard after Detective Dion and 

Agent Meehan had spoken with Faust. 

At some point, Detective Dion approached Faust and 

informed him that the gun found in the backpack matched one of the 

guns reported stolen during the Chicopee robbery. Detective Dion 

 

3 The district court found that, once he was secured outside of 

Apartment 5-R, Faust repeatedly asked Officer Richard what he could 

do to help himself. 
-6- 

told Faust that he did not have to speak with him, but inquired if 

Faust would like to do so. Faust told Detective Dion that he was 

willing to speak with him. 

Agent Meehan also approached Faust and asked his name, 

address, and whether he would like to speak with investigators. 

Agent Meehan told Faust that he was interested in recovering other 

guns that had been stolen during the Chicopee robbery. Faust 

again indicated that he was willing to speak with the 

investigators. 

Subsequently, Officer Richard and Officer McNally took 

Faust in a police cruiser and drove past the location where Faust 

claimed that additional guns stolen during the Chicopee robbery 

were located. Officer Richard and Officer McNally then drove 

Faust to the Springfield police station. 

Once at the station, Faust was advised of his Miranda 

rights. Faust confirmed that he understood his rights and that 

he wished to speak with the interviewing officers. During his 

interview, Faust admitted to his involvement, alongside Leighty 

and two other individuals, in the Chicopee robbery. Faust also 

admitted to handling the 9mm pistol found in his possession and 

stated that his fingerprints would likely be found on it. 

Faust sought to suppress the statements he made during 

his police station interrogation, a motion which the district court 
-7- 

denied. In accordance with the ACCA, the district court sentenced 

Faust to 180 months of imprisonment. During sentencing, Faust 

objected to his classification as an armed career criminal on the 

ground that neither his conviction for resisting arrest nor for 

ABPO qualify as ACCA predicates. 

This timely appeal followed. 

II. Probable Cause to Search 

When reviewing the denial of a motion to suppress, "we 

view the facts in the light most favorable to the district court's 

ruling on the motion, and we review the district court's findings 

of fact and credibility determinations for clear error." United 

States v. Fermin, 771 F.3d 71, 76-77 (1st Cir. 2014) (quoting 

United States v. Camacho, 661 F.3d 718, 723 (1st Cir. 2011)) 

(internal citations and quotation marks omitted). "[W]e review 

conclusions of law de novo, giving plenary review to the district 

court's application of law to facts, reasonable-suspicion 

determinations, and ultimate decision to deny the motion." Id. 

at 77 (citing Camacho, 661 F.3d at 724). However, "we afford an 

ample amount of deference to the issuing magistrate's finding of 

probable cause" when reviewing if an affidavit supports the issued 

warrant. United States v. Dixon, 787 F.3d 55, 58 (1st Cir. 2015) 

(citations omitted). As a result, we will reverse a finding of 

probable cause "only if we see no substantial basis for concluding 
-8- 

that probable cause existed." Id. at 59 (quoting United States 

v. Ribeiro, 397 F.3d 43, 48 (1st Cir. 2005)). Probable cause is 

present if "the facts and circumstances as to which police have 

reasonably trustworthy information are sufficient to warrant a 

person of reasonable caution in the belief that evidence of a crime 

will be found." United States v. Silva, 742 F.3d 1, 7 (1st Cir. 

2014) (quoting Robinson v. Cook, 706 F.3d 25, 32 (1st Cir. 2013)). 

"A warrant application must demonstrate probable cause 

to believe that (1) a crime has been committed-the 'commission' 

element, and (2) enumerated evidence of the offense will be found 

at the place to be searched-the so-called 'nexus' element." 

United States v. Rodrigue, 560 F.3d 29, 32-33 (1st Cir. 2009) 

(quoting Ribeiro, 397 F.3d at 48). To satisfy the nexus element, 

the warrant application "must give someone of 'reasonable caution' 

reason to believe that evidence of a crime will be found at the 

place to be searched." Ribeiro, 397 F.3d at 49 (citation omitted). 

Faust contends that Sergeant Boucher's affidavit failed 

to establish probable cause to search his person. Specifically, 

he argues there was no probable cause to believe that the items 

listed in the warrant could be found on him.4

 

4 Arguably, Faust has waived his challenge to the validity of the 

search warrant by failing to properly develop his argument. See 

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Because 

we find that his argument fails on the merits, we opt to discuss 
-9- 

As the district court observed, Sergeant Boucher's 

affidavit stated that: (1) Faust and Leighty had been detained for 

a traffic violation on April 22, 2011, the same day as the Monson 

robbery, which resulted in their vehicle being towed; (2) on that 

same day Charbonneau picked up both Faust and Leighty after the 

vehicle was towed; (3) Leighty gave Charbonneau a wristwatch that 

was later identified as stolen during the Monson robbery; (4) the 

items stolen during the Monson robbery were "the sort of items 

that a person would carry on their person." Moreover, Leighty 

gave Charbonneau $6.50 in rolled pennies as payment for giving her 

and Faust a ride. We find that the affidavit adequately satisfied 

the commission element. The fact that Leighty and Faust were 

detained on the day of the Monson robbery and had items from that 

robbery in their possession supports a conclusion that evidence of 

the Monson robbery would be found on Faust's person. The facts 

presented in a search warrant application must be such that they 

permit a man of reasonable caution to conclude that "evidence of 

a crime will be found." See United States v. Soto, 799 F.3d 68, 

84 (1st Cir. 2015) (quoting United States v. Feliz, 182 F.3d 82, 

86 (1st Cir. 1999)). Accordingly, we find that there was ample 

probable cause to search Faust. 

 

the reasons why the search warrant was valid. 
-10- 

To the extent Faust is arguing that the officers could 

not follow him into Apartment 5-R, we note that there is a 

recognized exception to the warrant requirement when police are 

faced with the "threatened escape by a suspect." Bilida v. 

McCleod, 211 F.3d 166, 171 (1st Cir. 2000) (citing McCabe v. LifeLine Ambulance Serv., Inc., 77 F.3d 540, 545 (1st Cir. 1996)). 

Here, the police were executing the warrant when Leighty informed 

them that Faust had fled upstairs. The police immediately pursued 

Faust into Apartment 5-R where they observed him attempting to 

escape through the backdoor. Thus, even if the search warrant 

could not establish that the fruits of the Monson robbery could be 

found inside Apartment 5-R, the police could enter Apartment 5-R 

in pursuit of Faust.5

 

5 Faust also claims that the search of his person was the fruit 

of his unlawful arrest for breaking and entering into Apartment 5-

R, and thus any evidence found in the course of the search must be 

excluded. Specifically, he argues that police lacked probable 

cause to arrest him for breaking and entering under Massachusetts 

law because he lacked the necessary mens rea to commit that crime. 

Whether arresting officers had probable cause is not measured by 

the offense invoked at the time of the arrest, but rather by 

examining if "the facts known at the time of the arrest objectively 

provided probable cause to arrest." United States v. Jones, 432 

F.3d 34, 41 (1st Cir. 2005) (citation omitted). Probable cause 

to arrest hinges on whether police, "relying on reasonably 

trustworthy facts and circumstances, have information upon which 

a reasonably prudent person would believe the suspect had committed 

or was committing a crime." Id. (quoting United States v. Young, 

105 F.3d 1, 6 (1st Cir. 1997)). As a result, it is irrelevant if 

Faust was arrested for breaking and entering. Here, the arresting 

officers had probable cause to arrest Faust because they were aware 

that he was connected to the Monson robbery and attempted to flee 
-11- 

Accordingly, we find that the district court properly 

denied Faust's motion to suppress. 

III. Miranda 

Faust posits that his post-Miranda statements at the 

police station are also subject to suppression because he was 

subjected an impermissible two-step interrogation tactic. 

A failure to administer Miranda warnings, "unaccompanied 

by any actual coercion or other circumstances calculated to 

undermine the suspect's ability to exercise his free will, [does 

not] so taint[] the [later] investigatory process that a subsequent 

voluntary and informed waiver is ineffective for some 

indeterminate period." United States v. Jackson, 544 F.3d 351, 

360 (1st Cir. 2008) (quoting Oregon v. Elstad, 470 U.S. 298, 309 

(1985)) (alteration in original). Thus, in the absence of 

coercion or improper tactics by law enforcement in obtaining an 

initial statement, a subsequent statement is admissible if the 

defendant was advised of his Miranda rights and knowingly and 

voluntarily waived those rights. Elstad, 470 U.S. at 318. 

 

when police sought to execute the search warrant. Thus, a prudent 

person could conclude that Faust had committed a criminal offense. 

In any event, the officers recovered the backpack containing the 

gun and ammunition after Faust discarded it and before he was 

apprehended. Thus, Faust abandoned any expectation of privacy in 

the backpack, the recovery of which did not constitute a wrongful 

seizure. See United States v. Soto-Beníquez, 356 F.3d 1, 36 (1st 

Cir. 2003). 
-12- 

However, suppression may be proper when police 

deliberately employ a two-step interrogation tactic designed to 

circumvent Miranda warnings. United States v. Verdugo, 617 F.3d 

565, 574-75 (1st Cir. 2010) (citing Missouri v. Seibert, 542 U.S. 

600, 605-06 (2004) (plurality opinion)). The Supreme Court 

addressed the use of such a tactic in Seibert. The facts at issue 

in that case involved a defendant who was taken to the police 

station and subjected to questioning for thirty to forty minutes 

without the benefit of Miranda warnings. Seibert, 542 U.S. at 

604-05. Once the defendant made a crucial admission, she was 

given a twenty-minute break, after which she was provided Miranda 

warnings. The defendant was then confronted with her pre-warning 

statements in order to get her to repeat her confession. Id. at 

605. 

A four justice plurality of the Court held that, under 

these circumstances, the Miranda warnings were ineffective, 

thereby rendering the defendant's post-Miranda statements 

inadmissible. Id. at 611-14. The plurality focused on the 

circumstances surrounding the contested statements. 

Specifically, the plurality considered: (1) "the completeness and 

detail of the questions and answers in the first round of 

interrogation"; (2) "the overlapping content of the two 

statements"; (3) "the timing and setting of the first and the 
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second [interrogations]"; (4) "the continuity of police 

personnel"; and (5) "the degree to which the interrogator's 

questions treated the second round as continuous with the first." 

Id. at 615. 

Justice Kennedy, who provided the fifth vote in favor of 

the judgment, advanced a narrower test.6 Under Justice Kennedy's 

approach the deliberate use of a two-step interrogation creates a 

presumptive taint. Id. at 622 (Kennedy, J., concurring). However, 

when police do not employ a two-step tactic, "[t]he admissibility 

of postwarning statements should continue to be governed by the 

principles of Elstad . . . ." Id. 

Here, the result is the same under either approach. 

Faust's contention withers under the plurality's analysis. The 

testimony provided at the evidentiary hearing does not support a 

conclusion that the questions posed in Apartment 5-R formed part 

of a larger continuous investigation that persisted at the police 

station. The record illustrates that Faust was read his rights 

 

6 We note that some Circuits have held that Seibert's reach is 

limited by Justice Kennedy's vote. See United States v. Jackson, 

608 F.3d 100, 103-04 (1st Cir. 2010) (collecting cases). In 

contrast, we have not settled on a definitive reading of Seibert. 

Compare Jackson, 608 F.3d at 103-04 (applying both the plurality's 

and Justice Kennedy's test), with United States v. Rogers, 659 

F.3d 74, 79 (1st Cir. 2011) (referring to Justice Kennedy's opinion 

as controlling). Because we find that Faust's argument fails 

under either approach, there is no need to address this question 

here. 
-14- 

at the police station and voluntarily waived them. Further, there 

is no evidence that police leveraged Faust's post-Miranda 

statements by utilizing any of his pre-Miranda responses. In sum, 

we agree with the district court's conclusion that Faust was not 

submitted to a two-step interrogation because the timing and 

settings of the pre-Miranda and post-Miranda questioning were 

different; the type of questions and their degree of detail varied 

greatly; and the pre-Miranda and post-Miranda questioning were not 

part of the same continuum. 

We reach an identical result under Justice Kennedy's 

test. Nothing in the record reveals the use of a deliberate twostep strategy geared towards leveraging Faust's confession. In 

the absence of such a tactic, Faust's station house statements are 

admissible if he was provided with Miranda warnings and he 

voluntarily and knowingly waived his rights. See Elstad, 470 U.S. 

at 318. As mentioned above, there is no indication that the 

officers employed a two-step tactic designed to circumvent Miranda 

or leverage Faust's confession. Moreover, the record confirms 

that Faust was advised of his Miranda rights and that he knowingly 

and voluntarily waived them. As such, his post-warning statements 

are not subject to suppression. 

Faust also contends that the district court erred when 

it found that Faust offered to speak to Officer Richard before 
-15- 

Detective Dion and Agent Meehan approached him. As we pointed out 

earlier, the record is unclear as to the precise sequence of events 

after Faust's apprehension in Apartment 5-R. Due to this lack of 

clarity, we cannot conclude that the district court's conclusion 

was clear error. See In re Brady-Zell, 756 F.3d 69, 72 (1st Cir. 

2014) ("[I]t is apodictic that where the facts can support two 

plausible but conflicting interpretations of a body of evidence, 

the factfinder's choice between them cannot be clearly erroneous." 

(citations omitted)).7

IV. Sentence Enhancement Under the ACCA 

The district court found that Faust was subject to a 

fifteen-year enhancement of his sentence under the ACCA. The ACCA 

enhancement applies when a defendant is convicted of being a felon 

in possession of a firearm and "has three previous convictions 

. . . for a violent felony or a serious drug offense, or both." 

18 U.S.C. § 924(e)(1). For our purposes, the relevant definition 

of "violent felony" under the ACCA is "any crime punishable by 

imprisonment for a term exceeding one year . . . that--(i) has as 

 

7 Faust also argues that his post-Miranda statements should be 

suppressed because he was searched in violation of the Fourth 

Amendment. However, we have already found that Faust was properly 

searched in accordance with the warrant and that police had 

probable cause to arrest Faust. 
-16- 

an element the use, attempted use, or threatened use of physical 

force against the person of another." Id. § 924(e)(2)(B). 

Faust has two uncontested predicate convictions that 

qualify as "serious drug offense[s]" and two possible violent 

felonies that are at issue in this appeal: a conviction for 

resisting arrest and two convictions arising out of the same 

conduct for assault and battery on a police officer (ABPO).8

The district court found that Faust's convictions for 

ABPO and resisting arrest both counted as predicate convictions. 

In so finding the judge explicitly stated that he felt bound by 

First Circuit precedent: United States v. Carrigan, 724 F.3d 39 

(1st Cir. 2013) and United States v. Weekes, 611 F.3d 68 (1st Cir. 

2010) with respect to resisting arrest, and United States v. Dancy, 

640 F.3d 455 (1st Cir. 2011) for ABPO. Applying the ACCA 

enhancement, the district court sentenced Faust to fifteen years 

of imprisonment, though he specifically stated that he believed 

"the 15-year sentence in this case is excessive" and that he 

"wouldn't be imposing a 15-year sentence if [he] wasn't required 

to." 

 

8 Because they were committed during a single course of conduct, 

only one of the ABPO convictions may count as a predicate offense. 

18 U.S.C. § 924(e)(1)(predicate convictions must be for crimes 

"committed on occasions different from one another"). 
-17- 

Because Carrigan and Weekes have been called into 

question by the Supreme Court's recent case of Mathis v. United 

States, 136 S. Ct. 2243 (2016), and Dancy relied upon a portion of 

18 U.S.C. § 924(e) that has since be deemed unconstitutionally 

vague, Johnson v. United States ("Johnson II"), 135 S. Ct. 2551, 

2563 (2015), we must return to the questions previously determined 

by those cases: do the Massachusetts offenses of resisting arrest 

and ABPO qualify as violent felonies under the ACCA? We review 

de novo "[w]hether a prior conviction qualifies as an ACCA 

predicate." United States v. Whindleton, 797 F.3d 105, 108 (1st 

Cir. 2015) (citing Carrigan, 724 F.3d at 48).9

A. Applicable Law 

1. Step One: Categorical Approach 

The basis of all of our ACCA decisions can be found in 

Taylor v. United States, 495 U.S. 575 (1990), which held that in 

determining whether a particular conviction would count as an ACCA 

predicate courts must take a "categorical" approach. Id. at 602. 

 

9 The government claims that Faust waived his arguments under the 

ACCA because they allege he based his argument below on Johnson v. 

United States ("Johnson I"), 559 U.S. 133 (2010), rather than on 

the question of divisibility as it is being presented to us now. 

This argument is without merit. In his objections below Faust's 

counsel specifically referenced Descamps v. United States, 133 S. 

Ct. 2276 (2013), the then-most-current authority on divisibility, 

and the district court specifically stated that Faust had preserved 

his objections under Descamps. 
-18- 

This means that a prior conviction will either count or not based 

solely on the fact of conviction rather than on facts particular 

to the individual defendant's case. Id. (finding that "the only 

plausible interpretation" of the ACCA is that "it generally 

requires the trial court to look only to the fact of conviction 

and the statutory definition of the prior offense"); see also 

Whindleton, 797 F.3d at 108 (same). The Taylor court based its 

decision on the statutory language of the ACCA, its legislative 

history, and the practical difficulties as well as potential 

unfairness of a factual approach. Id. at 600-01. The Court's 

evolving Sixth Amendment jurisprudence has made clear, however, 

that this "potential unfairness" actually envelops constitutional 

limitations dictating the categorical approach. Descamps, 133 S. 

Ct. at 2288 (pointing to the "categorical approach's Sixth 

Amendment underpinnings" and reasoning that a finding by the 

sentencing court that "went beyond merely identifying a prior 

conviction . . . to 'make a disputed' determination about what the 

defendant and state judge must have understood as the factual basis 

of the prior plea" would raise "serious Sixth Amendment concerns" 

(internal citation omitted)); see also Mathis v. United States, 

136 S. Ct. 2243, 2252 (2016)(citing "serious Sixth Amendment 

concerns" if a sentencing judge were permitted to go beyond the 
-19- 

elements of the statute in determining whether a previous 

conviction qualifies as a predicate). 

In applying the categorical approach to offenses that 

involve the force clause, the Supreme Court has made clear that 

the term physical force "means violent force -- that is, force 

capable of causing physical pain or injury to another person." 

Johnson I, 559 U.S. at 140 (emphasis in the original). Thus, the 

question is whether the predicate offense contains as an element 

violent force capable of causing physical pain or injury. 

Therefore, the first question a sentencing court must 

answer when applying the ACCA is whether all of the conduct covered 

by the statute categorically requires violent force. If the 

answer is yes, then a conviction under the statute will always 

count as a predicate under the ACCA. If the answer is no, then 

the court must move to step two and determine whether the statute 

is divisible. 

2. Step Two: Divisibility 

Taylor recognized that the categorical approach would 

face difficulties in states where the state statute defined the 

predicate offense "more broadly" than was found in the ACCA. 495 

U.S. at 599. In those situations, the Taylor court held, the 

categorical approach "may permit the sentencing court to go beyond 

the mere fact of conviction in a narrow range of cases where a 
-20- 

jury was actually required to find all the elements of [the ACCA 

defined offense]." Id. at 602 (providing as an example a situation 

where a "burglary statute[] include[s] entry of an automobile as 

well as a building, if the indictment or information and jury 

instructions show that the defendant was charged only with a 

burglary of a building, and that the jury necessarily had to find 

an entry of a building to convict, then the Government should be 

allowed to use the conviction for enhancement."). 

These "narrow range of cases" are now referred to as 

employing, somewhat misleadingly, the modified categorical 

approach. Whindleton, 797 F.3d at 108 (citing Descamps, 133 S. 

Ct. at 2281). The term is somewhat misleading because the framework 

is still categorical in the sense that the elements of the offense 

of conviction are compared with the elements of the statutory 

offense and only if they align may the offense count as a violent 

felony. Descamps, 133 S. Ct. at 2285 ("[T]he modified approach 

merely helps implement the categorical approach. . . . And it 

preserves the categorical approach's basic method: comparing 

those elements with the generic offense's."). Because the statute 

in question sweeps more broadly than the definition provided by 

Congress, however, it is necessary to separate out those offenses 

listed in the statute that align with Congress's definition from 

those that do not and to determine which offense formed the basis 
-21- 

of the defendant's prior conviction. The modified categorical 

approach thus involves a two-stage process: determine if the 

statute contains discrete offenses that can be separated from each 

other (termed "divisibility") and determine under which the 

defendant was convicted. Id. at 2281; see also United States v. 

Serrano-Mercado, 784 F.3d 838, 843 (1st Cir. 2015) (discussing 

divisibility and the application of the modified categorical 

approach). 

While this appeal was pending the Supreme Court handed 

down Mathis v. United States, 136 S. Ct. 2243 (2016), which 

purports to clarify prior case law on when a statute may be deemed 

divisible. Mathis reiterates a focus on "the elements of the 

crime of conviction," which it defines as 

the "constituent parts" of a crime's legal definition 

--the things the "prosecution must prove to sustain a 

conviction." At a trial, they are what the jury must 

find beyond a reasonable doubt to convict the 

defendant, and at a plea hearing, they are what the 

defendant necessarily admits when he pleads guilty. 

Id. at 2248 (citations omitted)(quoting Black's Law Dictionary 634 

(10th ed. 2014)). Mathis distinguishes between statutes that 

"list[] multiple elements disjunctively" and ones "that 

enumerate[] various factual means of committing a single element." 

Id. at 2249. The Court used a hypothetical from Descamps to 

illustrate this distinction: 
-22- 

suppose a statute requires use of "a deadly weapon" 

as an element of a crime and further provides that 

the use of a "knife, gun, bat, or similar weapon" 

would all qualify. Because that kind of list merely 

specifies diverse means of satisfying a single element 

of a single crime--or otherwise said, spells out 

various factual ways of committing some component of 

the offense--a jury need not find (or a defendant 

admit) any particular item. 

Id. (citation omitted)(quoting Descamps, 133 S. Ct. at 2289). 

Mathis thus directs that when a sentencing court is faced 

with a statute that lists alternatives, it must first determine 

"whether its listed items are elements or means." Id. at 2256. 

If they are elements then the court proceeds to apply the modified 

categorical approach and determine which "of the enumerated 

alternatives played a part in the defendant's prior conviction, 

and then compare that element (along with all others) to those of 

the generic crime." Id. If they are means, however, then the 

court's inquiry is at an end and the sentencing court may not delve 

into the facts of the case to determine which means this particular 

defendant used to commit the offense. Id. 

As to the "threshold inquiry--elements or means?,", 

Mathis states that this need not be difficult. Id. Mathis itself 

relies on a state court decision that specified that the statute 

in question listed alternative means of committing a single 

offense.10 Id. Mathis also directs the sentencing court to the 

 

10 In deciding the case on this basis, Mathis answered a question 
-23- 

statute itself. "If statutory alternatives carry different 

punishments, then under Apprendi they must be elements." Id. 

(citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). "[I]f 

state law fails to provide clear answers," then Mathis directs the 

sentencing court to "'peek at the [record] documents' . . . for 

'the sole and limited purpose of determining whether [the listed 

items are] element[s] of the offense.'" Id. at 2256-57. (quoting 

Rendon v. Holder, 782 F.3d 466, 473-74 (9th Cir. 2015) (Kozinkski, 

J., dissenting from denial of reh'g en banc)). For example, if 

the indictment and jury instructions reiterate "all the terms of 

[the] law" then "[t]hat is as clear an indication as any that each 

alternative is only a possible means of commission, not an element 

that the prosecutor must prove to a jury beyond a reasonable 

doubt." Id. at 2257. Similarly, "if those documents use a single 

umbrella terms like 'premises': Once again, the record would then 

reveal what the prosecutor has to (and does not have to) 

demonstrate to prevail." Id. If, at the end of this review "such 

record materials" do not "speak plainly," then "a sentencing judge 

will not be able to satisfy 'Taylor's demand for certainty' when 

 

left open by Descamps as to whether a state court decision can 

provide guidance in determining if something is an element or a 

means. See Descamps, 133 S. Ct. at 2291. 
-24- 

determining whether a defendant was convicted of a generic 

offense." Id. (quoting Shepard, 544 U.S. at 21). 

3. Step Three: Determining the Offense of Conviction 

If a statute is found to be divisible, then the 

sentencing court must proceed to the third and final step and 

determine which offense the defendant was actually convicted of. 

This step is guided by the Supreme Court's opinion, Shepard v. 

United States, 544 U.S. 13 (2005). There the Supreme Court 

specified what documents the sentencing court could reference in 

order to determine which of the multiple offenses listed in the 

statute was the crime committed by the defendant: "the statutory 

definition, charging document, written plea agreement, transcript 

of the plea colloquy, and any explicit factual finding by the trial 

judge to which the defendant assented." Id. at 16. These became 

known as Shepard documents. See, e.g., Sauceda v. Lynch, 819 F.3d 

526, 531 (1st Cir. 2016). Even at this stage, however, the 

district court's task is not to fit the facts of the individual 

defendant's conduct into one of the divisible offenses. Mathis, 

136 S. Ct. at 2251 ("How a given defendant actually perpetrated 

the crime--what we have referred to as the 'underlying brute facts 

or means' of commission--makes no difference." (quoting Richardson 

v. United States, 526 U.S. 813, 817 (1999))). Rather, the question 

is "whether the plea had 'necessarily' rested on the fact 
-25- 

identifying the [offense] as generic." Shepard, 544 U.S. at 21 

(quoting Taylor, 495 U.S. at 602). 

B. Massachusetts Resisting Arrest 

1. Step One: Categorical Approach 

Resisting Arrest in Massachusetts is defined by Mass. 

Gen. Laws ch. 268, § 32B(a), which states: 

A person commits the crime of resisting arrest if he 

knowingly prevents or attempts to prevent a police 

officer, acting under color of his official authority, 

from effecting an arrest of the actor or another by: 

(1) using or threatening to use physical force or 

violence against the police officer or another; or 

(2) using any other means which creates a substantial 

risk of causing bodily injury to such police officer 

or another. 

While the first form of resisting arrest was held to 

"fit[] squarely within the definition of a crime of violence," the 

second qualified under the so-called residual clause. United 

States v. Almenas, 553 F.3d 27, 33, 35 (1st Cir. 2009). This 

clause defined as a violent felony any offense which "involves 

conduct that presents a serious potential risk of physical injury 

to another." 18 U.S.C. § 924(e)(2)(B)(ii). It was invalidated 

as unconstitutionally vague by the Supreme Court in Johnson II, 

135 S. Ct. at 2563. The government concedes that the second form 

of resisting arrest, which could be accomplished by merely 

stiffening one's arm to avoid being handcuffed, does not survive 
-26- 

as a violent felony. Commonwealth v. Grandison, 741 N.E.2d 25, 

35 (Mass. 2001)(stiffening arms to avoid being handcuffed is 

identified as one of "any other means" that creates a "substantial 

risk of bodily injury"). Because a portion of the statute 

therefore defines offenses that do not meet the requirements of 18 

U.S.C. § 924(e)(2)(B), resisting arrest cannot categorically 

qualify as a predicate under the ACCA. We therefore turn to step 

two to determine whether the statute is divisible. 

2. Step Two: Divisibility 

This offense was previously found by this court to be 

divisible. Carrigan, 724 F.3d at 50. Following Mathis and its 

requirement that for a statute to be divisible the listed 

alternatives must be different elements rather than merely 

different means of committing an offense, the government now 

concedes that state law sources are equivocal as to whether 

resisting arrest is divisible. Mathis, 136 S. Ct. at 2256. The 

government bases its concession on the following: the lack of clear 

state court decisions parsing the elements of the offense; the 

lack of distinct penalties for the two "types" of resisting listed 

in the statute; Faust's indictment, which charges both variants; 

Faust's plea colloquy, which does not recite the elements of the 

offense; the model complaint, which charges both forms; and the 
-27- 

model jury instructions, which list both alternatives within a 

single element of "resisting."11

These pieces of evidence persuasively establish that the 

Massachusetts offense of resisting arrest is not divisible. When 

there is no state law ruling "definitively answer[ing] the 

question," we are called upon to examine the statute. Id. "If 

statutory alternatives carry different punishments, then under 

Apprendi they must be elements." Id. Here the punishment for 

resisting arrest is not impacted by whether the first or second 

method of committing the offense is used. Mass. Gen. Laws ch. 

268, § 32B(d)("Whoever violates this section shall be punished by 

imprisonment in a jail or house of correction for not more than 

two and one-half years or a fine of not more than five hundred 

dollars, or both."). The model charging language used by district 

courts in Massachusetts list both types of resisting arrest. 

District Court Complaint Language Manual 378 (2016). Faust's own 

indictment followed this model language. The model jury 

instructions used for resisting arrest list both subsections (1) 

and (2) as alternatives under a single element of resistance.12 

 

11 Among the pieces of evidence cited by the government both for 

resisting arrest and ABPO are Faust's Shepard documents. These 

were not produced below. Rather, the government provided them for 

the first time as part of its supplemental briefing. 

12 We note that Mathis does not make clear whether model jury 

instructions may always be used. Mathis permits a sentencing 
-28- 

Massachusetts Criminal Model Jury Instructions for Use in the 

District Court, Instruction 7.460, at 1-2 (2009); see also Mathis, 

136 S. Ct. at 2257 (finding that an indictment and "correlative 

jury instructions" that reiterate all the terms of the statute 

"[are] as clear an indication as any that each alternative is only 

a possible means of commission, not an element that the prosecutor 

must prove to a jury beyond a reasonable doubt."). Finally, 

Faust's plea colloquy with the sentencing judge did not specify 

the elements of resisting arrest and when entering his plea Faust 

 

court to "peek at the [record] documents" -- the documents being 

the Shepard documents. 136 S. Ct. at 2256. In a case such as 

this one where the defendant pled guilty there are no jury 

instructions included in the Shepard documents. Using model jury 

instructions in such a situation might suggest greater clarity to 

the question than the guilty plea documents might give (indeed, as 

we will see below, they might make a dispositive difference). 

While we note these concerns, we opt to use model jury instructions 

as one of the many pieces of evidence we will consult to determine 

divisibility. This is in keeping with Taylor's admonishment that 

an offense should count or not based solely on the fact of 

conviction, suggesting that the outcome should not depend on how 

the defendant was found guilty. 495 U.S. at 602. Moreover, the 

concerns raised above will still be relevant in, and perhaps better 

addressed at, step three, when the sentencing court has to 

determine the actual offense of conviction. A determination that 

a statute is divisible does not absolve the sentencing court from 

having to make the further finding of what this particular 

defendant necessarily pled guilty to, and if the answer to that 

question is not clear then the conviction cannot count as a 

predicate, even if the statute is divisible and some convictions 

under it categorically are predicates. Mathis, 136 S. Ct. at 2257 

(citing the need for the sentencing court to meet "Taylor's demand 

for certainty" (quoting Shepard, 544 U.S. at 21)). 
-29- 

was simply asked "as to count ten, charging resisting arrest, how 

do you wish to plead, sir?" to which he replied "[g]uilty." 

All of these pieces of evidence point to the same 

conclusion: sections (1) and (2) of the Massachusetts resisting 

arrest statute merely list two different means of committing a 

single element of "resisting." Because resisting arrest is not 

categorically a violent felony and the offense is not divisible, 

Faust's Massachusetts conviction for resisting arrest cannot be 

counted as a "violent felony" under the ACCA.13 Given that Faust's 

resisting arrest conviction does not qualify him for an ACCA 

enhancement, we turn now to his ABPO convictions and ask the same 

questions again: does the state statute categorically require 

violent force, and, if not, is it divisible? 

C. Massachusetts ABPO 

1. Step One: Categorical Approach 

The ABPO statute provides that a person commits ABPO 

when he "commits an assault and battery upon any public employee 

when such person is engaged in the performance of his duties at 

the time of such assault and battery." Mass. Gen. Laws ch. 265, 

 

13 A recent case in this court examined the question of whether 

the first "type" of resisting arrest is categorically a violent 

felony, but because the defendant in that case did not contest 

divisibility the court's opinion did not examine that question. 

United States v. Tavares, 843 F.3d 1, 10 (1st Cir. 2016). We thus 

now answer a question left open by the defendant in that case. 
-30- 

§ 13D. The Massachusetts's statute for assault and battery, Mass. 

Gen. Laws ch. 265, § 13A, encompasses the common-law variants of 

assault and battery. Commonwealth v. Eberhart, 965 N.E.2d 791, 

798 (Mass. 2012) (citations omitted). Under the common law, there 

are two theories of assault and battery: intentional battery and 

reckless battery. Id. at 798 n.13 (citing Commonwealth v. Porro, 

939 N.E.2d 1157, 1162 (Mass. 2010)). Intentional assault and 

battery includes both harmful battery and offensive battery. 

Harmful battery is defined as "[a]ny touching 'with such violence 

that bodily harm is likely to result.'" Eberhart, 965 N.E.2d at 

798 (quoting Commonwealth v. Burke, 457 N.E.2d 622, 624 (Mass. 

1983)). Offensive battery is defined as any unconsented touching 

that constitutes an "affront to the victim's personal integrity." 

Id. (quoting Burke, 457 N.E.2d at 624). In contrast, reckless 

battery involves the "wilful, wanton and reckless act which results 

in personal injury to another." Id. (quoting Commonwealth v. 

Welch, 450 N.E.2d 1100, 1102 (Mass. Ct. App. 1983)). 

The government concedes that offensive assault and 

battery does not qualify as requiring "violent force" under Johnson 

I. Indeed, this has been recognized in this circuit long before 

Johnson I and ever since the first case to apply assault and 

battery as an ACCA predicate, United States v. Bregnard, 951 F.2d 

457, 459 (1st Cir. 1991). Because the statute is thus overbroad, 
-31- 

we must turn to the question of whether ABPO is divisible among 

the different types of assault and battery. 

2. Step Two: Divisibility 

On its face this statute does not appear to list 

potential crimes in the alternative (listing, for example, 

harmful, offensive, or reckless battery). It simply states 

"assault and battery." Similarly, the punishment for ABPO is in 

no way altered by whether it involved harmful, offensive or 

reckless battery. Mass. Gen. Laws ch. 265, § 13D (providing that 

anyone guilty of "an assault and battery upon any public employee 

. . . shall be punished by imprisonment for not less than ninety 

days nor more than two and one-half years in a house of correction 

or by a fine of not less than five hundred nor more than five 

thousand dollars"); see Mathis, 136 S. Ct. at 2256 (stating that 

"[i]f statutory alternatives carry different punishments, then 

under Apprendi they must be elements"). Because the statute 

itself fails to make clear whether the different forms of assault 

and battery are separate elements or merely distinct means of 

committing a single element (the element being assault and battery) 

we turn to other sources to determine divisibility. 

a. Commonwealth v. Eberhart 

If state law is clear that the alternatives are elements 

or means then that can resolve the question of divisibility. 
-32- 

Mathis, 136 S. Ct. at 2256. In its brief to us the government 

argued that the question of divisibility was determined by the 

Massachusetts Supreme Judicial Court case Commonwealth v. 

Eberhart, 965 N.E.2d 791, 798 (Mass. 2012). Because the government 

backed away from this position at oral argument we will not tarry 

over it here, except to say that it was wise for them to have done 

so. Eberhart defines the elements of the different types of 

assault and battery under Massachusetts law and holds that assault 

and battery is divisible between these types under Massachusetts's 

similarly worded sentence enhancement statute. This would appear 

to control in this case except that, in defining those elements, 

at no point does Eberhart state that any of them must be found 

beyond a reasonable doubt by a jury or necessarily admitted to by 

a defendant when he or she pleads guilty to an ABPO. This question 

is crucial because that is how Mathis defines the term "element" 

in the ACCA. 136 S. Ct. at 2248. Thus, it is not enough that 

Eberhart states that there are three types of assault and battery 

under state law and then lists their elements or even that Eberhart 

found assault and battery to be divisible under Massachusetts's 

sentencing enhancement statute. 965 N.E.2d at 796, 800. The 

foundational question is what are the elements of ABPO and Mathis 

directs that this is answered by determining what a jury has to 

find beyond a reasonable doubt or a defendant must necessarily 
-33- 

admit when pleading guilty. Because Eberhart does not answer this 

threshold question for us, it cannot be dispositive in this case. 

b. United States v. Tavares 

At oral argument the government switched gears and 

argued that our decision is dictated by this court's recent 

decision, United States v. Tavares, 843 F.3d 1 (1st Cir. 2016). 

Tavares examined the divisibility of assault and battery in 

Massachusetts by examining recent state court decisions as well as 

model jury instructions. In particular, it noted that the recent 

Appeals Court of Massachusetts case Commonwealth v. Mistretta, 995 

N.E.2d 814 (per curiam), rev. denied, 996 N.E.2d 881 (Mass. 2013) 

suggests that assault and battery is not divisible. 843 F.3d at 

15. In that case, the court found that the intentional and reckless 

forms of assault and battery "are closely related subcategories of 

the same crime," and therefore "[s]pecific unanimity is not 

required, because they are not 'separate, distinct, and 

essentially unrelated ways in which the same crime can be 

committed.'" Mistretta, 995 N.E.2d at 815-16 (citation omitted). 

The Tavares opinion states that "[b]ased on Mistretta" the 2016 

model jury instructions no longer required a "verdict slip or 
-34- 

specific unanimity instruction[s]" where both forms of assault and 

battery were alleged. 843 F.3d at 14. 

Because Mistretta is an Appeals Court decision, however, 

Tavares proceeds to "predict how the SJC would decide whether a 

specific unanimity instruction is required," using Mistretta as a 

piece of relevant evidence but not determinative of the outcome. 

Id. at 15. In particular, Tavares looks to an earlier SJC case, 

Commonwealth v. Santos, 797 N.E.2d 1191 (Mass. 2003), which 

concluded that a jury did not need to be unanimous on the theories 

underlying the "'assault' element of armed robbery." Id. at 1194. 

The SJC found instead that the different theories are actually 

"overlapping subcategories of a single element into separate 

'theories.'" Id. at 1196. The SJC reasoned that in order to 

require unanimity the different methods of committing the offense 

have to be "substantively distinct or dissimilar." Id. at 1197-

98. It then cited two offenses having different mens rea 

requirements (voluntary and involuntary manslaughter) as being an 

example of "substantively distinct or dissimilar" offenses that 

would require juror unanimity. Id. at 1197. Based in part on 

this argument, Tavares "predict[s] that the SJC would not follow 

Mistretta" and holds that assault and battery is divisible between 

its intentional and reckless forms. Id. at 17. 
-35- 

Tavares involved the career offender provision of the 

Sentencing Guidelines, though we have previously found that "the 

terms 'crime of violence' under the career offender guideline and 

'violent felony' under the ACCA are nearly identical in meaning, 

so that decisions construing one term inform the construction of 

the other." United States v. Willings, 588 F.3d 56, 58 n.2 (1st 

Cir. 2009); see also United States v. Fields, 823 F.3d 20, 35 

(2016)(same). This would suggest that Tavares's determination 

that assault and battery in Massachusetts is divisible between 

intentional assault and battery and reckless assault and battery 

precludes any other determination by this court. 

The defendant argues, however, that he should not be 

bound by Tavares's holding specifically because that case involved 

the Sentencing Guidelines whereas his involves the ACCA. He 

argues that because the Sentencing Guidelines are non-binding, 

whereas the ACCA creates a mandatory minimum, both due process as 

well as the Sixth Amendment dictates that we cannot take an 

informed prophecy approach to state law but must, rather, determine 

what the law was at the time of his conviction. 

This argument is supported by the Supreme Court's 

decision of McNeill v. United States, which makes clear that when 

applying the ACCA the task for the sentencing court is to determine 

the defendant's "previous conviction" and "[t]he only way to answer 
-36- 

this backward-looking question is to consult the law that applied 

at the time of that conviction." 563 U.S. 816, 820 (2011). In 

making this argument the unanimous Court in McNeill pointed to its 

previous ACCA cases, which looked to the versions of state law 

that were current at the time of the defendant's convictions, not 

at the time of the Court's decision. Id. at 821-22 (calling them 

"the historical statute of conviction"). 

The approach that McNeill dictates that we take in ACCA 

cases thus conflicts with the "informed prophecy" approach in 

Tavares. 843 F.3d at 14. We can avoid this conflict, however, 

because Faust was convicted of ABPO in 2009, prior to the Mistretta 

decision but following Santos. We thus find the "informed prophecy" 

approach unnecessary for the resolution of this case in which the 

defendant was clearly convicted of ABPO prior to Mistretta.14 At 

that time, the model jury instructions provided that 

If the evidence would warrant a guilty verdict for 

the offense of assault and battery on more than one 

theory of culpability, the judge must provide the jury 

with a verdict slip to indicate the theory or theories 

on which the jury bases its verdict and, on request, 

instruct the jurors that they must agree unanimously 

on the theory of culpability. 

 

14 We note that apparently neither the government nor the 

defendant in Tavares argued whether a historical approach should 

be taken in determining the offense of conviction even though 

Tavares's own conviction also predated Mistretta. United States 

v. Tavares, No. 14-2319, at 2 (1st Cir. Mar. 1, 2017)(Docket No. 

94). 
-37- 

Massachusetts Criminal Model Jury Instructions for Use in the 

District Court, Instruction 6.210, at 8 n.1 (May 2011)(citations 

omitted). This requirement of juror unanimity between the 

intentional and reckless forms of ABPO is strong evidence that 

Faust's conviction for ABPO was divisible between those two forms. 

We acknowledge, however, that there are considerations 

that point in the opposite direction. As with Faust's resisting 

arrest conviction, Faust's indictment merely states that he did 

"assault and beat" a police officer while the model complaint 

language similarly dictates the simple "did assault and beat" 

language. Finally, Faust's plea colloquy fails to include anywhere 

the terms "intentional assault and battery" or "reckless assault 

and battery." Rather, the judge simply asked Faust "[h]as your 

attorney explained to you what the Commonwealth would have to prove 

in order for you to be found guilty of these charges?" to which 

Faust answered "[y]es," and then the judge asked "[a]ttorney 

Bernard, have you explained to your client the elements?" to which 

Faust's attorney responded "[a]ll the essential elements, yes." 

Following this exchange the clerk asked Mr. Faust "as to counts 

five and six, each charging assault and battery on a police officer 

. . . how do you wish to plead, sir?" to which Faust replied 

"[g]uilty." The plea colloquy thus leaves equivocal what, exactly, 

the essential elements were believed to be. 
-38- 

Given Mathis's specific reference to what a jury 

"necessarily" must find in order to convict, however, we find the 

model jury instructions to be particularly persuasive and hold 

that at the time of his guilty plea Faust's ABPO conviction was 

divisible between the intentional and reckless forms. 136 S. Ct. 

at 2255. We do not find, however, any indication that the 

intentional form was further divisible between offensive and 

harmful assault and battery.15 Because offensive assault and 

battery does not require violent force, the intentional form of 

ABPO is therefore overbroad and categorically cannot count as a 

predicate for ACCA purposes. 

3. Step Three: Determining the Offense of Conviction 

The district court below found that the offense of ABPO 

qualified as an ACCA predicate under then controlling First Circuit 

precedent, Dancy, 640 F.3d at 470. Having so found, it did not 

need to turn to the question of which type of ABPO Faust 

committed.16 As outlined above, we now hold that ABPO is divisible. 

 

15 As with resisting arrest above, all evidence indicates that 

intentional assault and battery is not divisible between the 

harmful and offensive forms. In particular, the model jury 

instructions for intentional ABPO state that the jury must find 

"That the touching was either likely to cause bodily harm to [the 

alleged victim], or was done without his (her) consent." 

Massachusetts Criminal Model Jury Instructions for Use in the 

District Court, Instruction 6.210, at 8 n.1 (May 2011)(emphasis in 

original). 

16 In part for this reason we will subject Faust's argument that 
-39- 

Once a sentencing court determines that a defendant has a prior 

conviction under a divisible statute, it must proceed to step three 

and determine which among the multiple crimes listed was the 

offense of conviction. The Supreme Court provided guidance on how 

to conduct this inquiry in Shepard. There it enumerated the 

documents that the sentencing court might consult at this stage: 

"the terms of the charging document, the terms of a plea agreement 

or transcript of colloquy between judge and defendant in which the 

factual basis for the plea was confirmed by the defendant, or . . . 

some comparable judicial record of this information." Shepard, 

544 U.S. at 26. If, at sentencing, the district court is faced 

with a predicate conviction that is based on a divisible offense 

then it must consult approved Shepard documents in order to 

determine which of the offenses the defendant "necessarily" pled 

guilty to. Id. at 21.17

In its supplemental brief the government included all of 

Faust's Shepard documents and urged us to affirm Faust's conviction 

 

the government has not proven which type of ABPO offense he 

committed to de novo review. Additionally, although the government 

argues that Faust's divisibility argument is waived, see supra 

n.9, it does not argue that the question of which form of ABPO 

Faust committed should be subject to plain error review. 

17 Previous of our cases have grappled with the question of whether 

it is plain error to, at this stage, rely on the presentence 

report's ("PSR") categorization of a prior conviction as a 

predicate offense when there has been no objection by the 

defendant. See, e.g., Serrano-Mercado, 784 F.3d at 846-48 
-40- 

because the facts he admitted as part of his plea colloquy were 

consistent with harmful battery. At oral argument the government 

switched gears and urged us to affirm Faust's sentence because the 

facts he admitted as part of his plea colloquy were consistent 

with reckless battery. The government therefore appears to all 

but concede that the facts admitted by Faust during his plea could 

be consistent with either intentional battery or with reckless 

battery. 

As we stated earlier, if "such record materials" do not 

"speak plainly," then "a sentencing judge will not be able to 

satisfy 'Taylor's demand for certainty' when determining whether 

a defendant was convicted of a generic offense." Mathis, 136 S. 

Ct. at 2257 (quoting Shepard, 544 U.S. at 21). Facts that are as 

consistent with intentional ABPO as they are with reckless ABPO 

 

(summarizing cases and concluding that whether or not there was 

plain error, in none of the cases was it prejudicial to have relied 

on an unobjected to PSR). The court in those cases faced a 

markedly different situation from the one with which we are 

presented. Here Faust did object to the PSR's categorization of 

his prior offenses. In that situation "a presentence report in a 

subsequent case ordinarily may not be used to prove the details of 

the offense conduct that underlies a prior conviction." United 

States v. Dávila-Félix, 667 F.3d 47, 57 (1st Cir. 2011)(quoting 

United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir. 

2006)). Moreover, Mathis makes clear that the elemental approach 

dictates that the question at this stage of the inquiry is what 

the defendant "necessarily admitt[ed] when he [pled] guilty." 136 

S. Ct. at 2248. The factual account of Faust's prior conviction 

that is included in his PSR simply cannot provide an answer to 

this inquiry. 
-41- 

can hardly be said to "speak plainly." More to the point, however, 

although step three invites the district court to examine the 

documents of the convicting court, the question to be answered 

remains concentrated on the elements of the actual offense of 

conviction rather than on the specific facts of Faust's conduct. 

The enquiry posed in step three is no broader than that posed under 

step two: what did Faust "necessarily admit[] when he [pled] 

guilty"? Mathis, 136 S. Ct. at 2248; see also Shepard, 544 U.S. 

at 26 (defining the "enquiry" to be "whether a plea of guilty to 

burglary defined by a nongeneric statute necessarily admitted 

elements of the generic offense"). The aim therefore remains on 

determining the elements that Faust pled guilty to, not how he 

committed the particular crime. This focus is particularly 

important in situations such as here where numerous of the Shepard 

documents (indictment, model charging language and the clerk's 

statement of what offense Faust was pleading guilty to) fail to 

specify the type of assault and battery at issue and particularly 

where the punishment received was in no way impacted by the type 

of assault and battery to which Faust pled.18

 

18 In light of this latter fact, we would do well to remember the 

caution the Supreme Court in Mathis and Descamps has given against 

an overreliance on the factual statements contained in a plea 

colloquy: "Statements of 'non-elemental fact' in the records of 

prior convictions are prone to error precisely because their proof 

is unnecessary." Mathis, 136 S. Ct. at 2253 (quoting Descamps, 

133 S. Ct. at 2288). During a plea hearing "a defendant may have 
-42- 

We therefore remand to the district court for it to 

determine which form of ABPO Faust necessarily pled guilty to. If 

it was the intentional form, then his conviction for ABPO 

categorically cannot count as a violent felony under the ACCA. If 

it is plain that Faust pled guilty to the reckless form, however, 

then the district court must determine whether reckless conduct 

qualifies as the "use" of force under the ACCA. At this time we 

decline to take a position on this question.19 Finally, if the 

district court finds that it is unclear which form of ABPO Faust 

pled guilty to, then his ABPO conviction cannot be used as a 

predicate under the ACCA because the court's step three inquiry 

utilizing Shepard documents will not have made plain what the 

offense of conviction actually was. 

V. Conclusion 

For the foregoing reasons, we affirm the district 

court's denial of Faust's motion to suppress and we vacate and 

remand for resentencing proceedings consistent with this opinion. 

Affirmed in part, Vacated and Remanded in part. 

"Concurring opinions follows" 

 

no incentive to contest what does not matter under the law; to the 

contrary, he 'may have good reason not to'--or even be precluded 

from doing so by the court." Id. (quoting Descamps, 133 S. Ct. 

at 2289). 

19 Tavares likewise left this question unanswered. 843 F.3d at 

18-20. 
-43- 

LYNCH, Circuit Judge, concurring. I join that portion 

of Judge Torruella's fine opinion affirming the judgment of 

conviction and the order remanding the case, but not the discussion 

of the sentencing issues concerning the two predicate state crimes. 

I do agree that the case must be remanded to the district court 

for a review of the Shepard documents newly produced on appeal by 

the government. But I believe we should not address issues beyond 

that remand for consideration of the Shepard documents by the 

district court in the first instance. 

The average person on the street would ordinarily think 

that the state crime of assault and battery on a police officer 

would meet the ACCA definition of crime of violence, that is "the 

use, attempted use, or threatened use of physical force against 

the person of another." 18 U.S.C. § 924(e)(2)(B)(i). Other 

circuits have noted that tension. See United States v. Harris, 

844 F.3d 1260, 1262 (10th Cir. 2017) (noting that question of 

whether robbery is a "violent felony" for ACCA "should be [] 

obvious," but that under the governing analysis, "the obvious may 

not be so plain"). It is perfectly clear Congress intended 

enhanced punishment to apply to recidivists whose prior crimes met 

that definition. But in recent years the Supreme Court has issued 

a series of decisions restructuring the analysis from one directly 

addressed to Congressional intent, into a number of other tests. 
-44- 

I do not question here that the sentencing portion of Judge 

Torruella's opinion is faithful to those judicially created tests. 

I do have doubts about the majority's holding as to several issues 

I consider not to be necessary to the opinion. My doubts about 

these matters do not prevent me from agreeing that the remand is 

the correct outcome. 

My concern is that use of these tests can lead courts to 

reach counterintuitive results, and ones which are not what 

Congress intended. Respected circuit judges share this concern. 

See, e.g., United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 

2016) (Wilkinson, J., concurring) (observing that "the categorical 

approach can serve as a protracted ruse for paradoxically finding 

even the worst and most violent offenses not to constitute crimes 

of violence" and that "too aggressively applied, [the categorical 

approach] eviscerates Congress's attempt to enhance penalties for 

violent recidivist behavior"), petition for cert. filed, 85 

U.S.L.W. ___ (U.S. Mar. 17, 2017) (No. 16-8435). 

The concern has also been expressed most eloquently by 

several Justices of the United States Supreme Court. As Justice 

Kennedy has said, "arbitrary and inequitable results produced by 

applying an elements based approach . . . could not have been 

Congress' intent." Mathis v. United States, 136 S. Ct. 2243, 2258 

(Kennedy, J., concurring). In Mathis, Justice Breyer, joined by 
-45- 

Justice Ginsburg, in dissent stated "[t]he elements/means 

distinction that the Court draws should not matter for sentencing 

purposes. I fear that the majority's contrary view will 

unnecessarily complicate federal sentencing law, often preventing 

courts from properly applying the sentencing statute that Congress 

enacted." Id. at 2259 (Breyer, J., dissenting). And, also 

dissenting in Mathis, Justice Alito, discussing the "modified 

categorical" approach culminating in Descamps v. United States, 

133 S. Ct. 2276 (2013), stated "[p]rogrammed in this way, the Court 

set out on a course that has increasingly led to results that 

Congress could not have intended." Id. at 2268 (Alito, J., 

dissenting). 

I also agree with Justice Kennedy's hope for Congress to 

"amend[] the ACCA to resolve these concerns," id. at 2258 (Kennedy, 

J., concurring), as well as other concerns, including avoidance of 

racially disparate results, which have been highlighted in efforts 

at sentencing reform. See Seung Min Kim, Senators Plan to Revive 

Sentencing Reform Push, Politico (Jan. 4, 2017, 5:13 AM), 

http://www.politico.com/story/2017/01/senate-criminal-justicesentencing-reform-233071; Bill Keller, Will 2017 Be the Year of 

Criminal Justice Reform?, N.Y. Times (Dec. 16, 2016), 

http://www.nytimes.com/2016/12/16/opinion/will-2017-be-the-yearof-criminal-justice-reform.html. 
-46- 

BARRON, Circuit Judge, with whom TORRUELLA, Circuit 

Judge, joins, concurring. I fully agree with this excellent 

majority opinion. I write separately to add these thoughts about 

the growing sentiment that Congress could not have intended for us 

to apply the increasingly complicated framework that the Supreme 

Court now requires us to apply in order to determine the scope of 

the Armed Career Criminal Act (ACCA). In my view, this line of 

criticism rests on a mistaken premise. 

I do not doubt that Congress may have failed to foresee 

how hard it would be to identify those offenders who, by dint of 

their past violence, must automatically be subject to the severe 

sentencing enhancement that ACCA imposes. I do doubt that Congress 

wanted us to ignore the reality that such a task is a hard one if, 

in reality, it is. And, experience has shown, that task is hard. 

For that reason, I think it is important to review Congress's own 

role in leading us down this complicated jurisprudential path, 

which has lately come in for such criticism. That review 

highlights to me a number of too-easily overlooked problems that 

the Supreme Court's current framework for applying ACCA manages to 

avoid but that otherwise might arise. 

I. 

First, I realize that the counterintuitive results 

sometimes produced by the categorical approach may appear to be 
-47- 

ones that Congress could not possibly have intended, especially 

given what often appears to be the violent nature of the underlying 

conduct of the defendant. We should not lose sight of the fact, 

however, that often "[t]he best indication of Congress's 

intentions . . . is the text of the statute itself." S. Port 

Marine, LLC v. Gulf Oil Ltd. P'ship, 234 F.3d 58, 65 (1st Cir. 

2000). And the text of ACCA indicates that Congress did want us 

to focus on the offense of conviction rather than on the conduct 

that the defendant engaged in while committing the offense for 

which he was ultimately convicted. As the Court has observed, 

ACCA expressly makes the defendant's "conviction" the trigger for 

the enhancement and makes no reference to "conduct." 18 U.S.C. 

§ 924(e)(1) ("In the case of a person who violates section 922(g) 

of this title and has three previous convictions by any court 

referred to in section 922(g)(1) of this title for a violent felony 

or a serious drug offense . . . ." (emphasis added)); Mathis v. 

United States, 136 S. Ct. 2243, 2252 (2016). 

Second, and relatedly, ACCA's text expressly tells us 

that, in focusing on the "conviction," we should not focus on the 

label that the state legislature may have given to the underlying 

criminal offense -- no matter how violent-sounding that label may 

be. In denominating crimes of violence, Congress has said nothing 

about the labels that states have given to offenses. Congress 
-48- 

instead has referred only to the actual elements of the offense. 

Specifically, Congress, in the definition of "violent felony," 

expressly orients us to the elements of the predicate crime: "any 

crime . . . 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) (emphasis added). 

In light of these aspects of ACCA's plain text, it seems 

to me that the case is actually quite strong for concluding that 

Congress, by writing ACCA the way that it did, intended for us to 

adopt the focus reflected in the extended line of Supreme Court 

cases that establishes the categorical approach. After all, there 

are good reasons to privilege the "conviction" and the "elements" 

that comprise that conviction over either the label that a state 

legislature may have given to the offense or the nature of the 

defendant's conduct in committing the underlying offense. As the 

Court has observed, such a categorical -- some might say, 

abstract -- focus for the inquiry avoids some very real problems 

that otherwise would arise. 

It must be remembered in this regard that the label that 

a state legislature gives to a criminal offense is not necessarily 

a good guide for determining whether a conviction is for a violent 

act. That label is, in many ways, no different from a statute's 

title. As such, that label is often a poor proxy for the substance 
-49- 

of the underlying legislation. For that reason, there is good 

reason to be wary of giving an offense's violent-sounding label 

much interpretive weight -- at least when the label does not 

reflect the fact that the elements of the offense clearly encompass 

non-violent conduct. See Bhd. of R. R. Trainmen v. Baltimore & 

O. R. Co., 331 U.S. 519, 528–29 (1947) ("[T]he title of a statute 

and the heading of a section cannot limit the plain meaning of the 

text."). 

To be sure, Congress, in focusing on the "conviction" 

rather than on the defendant's conduct and on the "elements" of 

the conviction rather than on its label, may not have expected for 

there to be as much of a mismatch as there often turns out to be 

between the label that a state gives to a crime and the elements 

of that crime. For example, Congress apparently envisioned that 

the generic offense of "assault" would qualify as a violent felony 

under what is known as ACCA's force clause, on the thought that 

the underlying conduct would invariably be violent. See H.R. Rep. 

No. 99-849, at 3 (1986) (suggesting that the list of "violent 

felonies under Federal or State law . . . would include such 

felonies involving physical force against a person such as murder, 

rape, assault, robbery, etc."). 

But, I do not think Congress's possible misapprehension 

about the actual elements of a crime that bears an indisputably 
-50- 

violent-sounding moniker supplies a reason for us to conclude that 

Congress wanted us to ignore the reality that the elements of the 

crime of conviction often actually cover non-violent conduct. See 

Popal v. Gonzales, 416 F.3d 249, 254 n.5 (3d Cir. 2005) ("In short, 

we recognize that our holding today might seem to conflict with 

Congress's intent as expressed in the legislative history of § 16. 

But we believe that this apparent conflict is a mirage, caused by 

the fact that Pennsylvania has chosen to classify as simple assault 

offenses that the congressional drafters were unlikely to have had 

in mind."). In fact, the crimes at issue in this case demonstrate 

this mismatch between the level of violence implied by the title 

of the crime and the level of violence required to commit the 

crime. Stiffening one's arm to avoid arrest qualifies as resisting 

arrest, Commonwealth v. Grandison, 741 N.E.2d 25, 35 (Mass. 2001), 

and an offensive touching, even if slight, qualifies as assault 

and battery, Commonwealth v. Cohen, 771 N.E.2d 176, 177 (Mass. 

App. 2002). And, even the government appears to accept that such 

conduct is not "violent" within the meaning of ACCA. 

A state's choice to expand the scope of its crimes to 

encompass both violent and non-violent conduct may make great sense 

in terms of state policy. It certainly makes it easier for state 

and local prosecutors to make their cases. But a state, in so 

acting, is not attempting to ensure what Congress is attempting to 
-51- 

ensure through ACCA -- that armed, repeat, violent offenders are 

treated especially harshly. Rather, a state that enacts a broad 

assault or robbery statute is just attempting to ensure that anyone 

who falls with the scope of that state-defined crime may be 

punished for that particular crime, broadly defined as it is. As 

a result, there is no reason to think that Congress would have 

wanted us to rely on state criminal law labels -- when they 

oversell the actual nature of the prohibited conducted that juries 

must actually find the defendant to have engaged in -- to implement 

Congress's attempt through ACCA to single out that class of 

criminals who are repeatedly violent and thus must be specially 

punished in consequence. And thus there is no reason to think 

that, in directing us to look to the elements of state law crimes, 

Congress, in writing ACCA, did not mean what it said. 

Of course, a direct focus on a defendant's actual conduct 

could, in theory, solve the "problem" that arises from the frequent 

mismatch between a crime's name and a crime's elements. 

Sometimes, perhaps often, assaults are violent, even though a jury 

need not find them to be so in order to convict. But, it must 

also be remembered that, if the defendant's conduct alone mattered, 

then some very real problems still would arise. 

For one thing, as the Court has pointed out, a 

characterization of the defendant's conduct by a federal judge 
-52- 

made well after the conviction could violate a defendant's Sixth 

Amendment rights if that characterization would increase the 

maximum penalty faced by the defendant. Mathis, 136 S. Ct. at 

2252. Why, then, should we assume that Congress wished for us to 

focus on that conduct in applying ACCA, given that it would 

increase that maximum penalty? Haven't we long construed statutes 

to avoid constitutional problems rather than to create them, on 

the understanding (however fictional it may sometimes be) that 

Congress is not in the habit of pushing constitutional bounds? 

There is also another reason to think that Congress 

directed us to focus on the "conviction" and its "elements" rather 

than on the defendant's underlying conduct in order to avoid a 

problem that might arise if the focus were on conduct. As the 

Court has observed, a federal judge's characterization of a crime 

as a violent one could be quite unfair to a defendant if it were 

based only on a years-later review of a defendant's conduct that 

is, in turn, based only on agreed-upon facts that were adduced at, 

say, a plea colloquy. 

After all, at the time that a defendant decides to plead 

guilty to a state crime, the defendant would likely have no real 

notice of the potentially severe federal consequences of a decision 

not to challenge the state's characterization of the defendant's 

underlying conduct. Id. at 2253. For example, the first-time 
-53- 

offender cannot be presumed to know that he will later commit two 

additional state crimes and a federal firearms offense, but it is 

only after those crimes are committed that the first crime's 

violent nature becomes relevant. Thus, a federal district court's 

reliance on the description of the conduct from the plea colloquy, 

despite that lack of notice, could therefore raise serious due 

process concerns if the district court did not also give the 

defendant an opportunity to contest that description of the 

conduct. 

Nor would that notice problem be efficiently solved by 

affording the defendant an opportunity to contest that description 

in the federal sentencing proceedings. That approach would invite 

a mini-trial about the facts of the prior offense years or decades 

after the fact. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1690 

(2013) ("The categorical approach . . . promotes judicial and 

administrative efficiency by precluding the relitigation of past 

convictions in minitrials conducted long after the fact."). It 

is hard to make the categorical approach look like an efficient 

way of determining which offenses qualify as predicate offenses. 

A conduct-based approach that, in order to protect the due process 

interests of the defendant, necessitated searching retrospective 

inquiries into long-since-passed state court proceedings might 

well accomplish that seemingly impossible feat. 
-54- 

I suppose that an alternative, more conduct-based 

framework could, in time, become well known enough to defendants 

that, in response, they would begin routinely to take care in their 

state court proceedings to protect themselves from the potential 

future impact of ACAA. But, even if that quite speculative 

possibility came to pass, it would give rise to a serious problem 

of its own. 

Such a reaction by defendants to a revised, conductfocused framework could seriously disrupt the dynamics of the state 

criminal process, both in plea-bargaining and in trials. The 

concern would be that, under such a revised legal framework, 

defense counsel, in developing a record for plea or trial, would 

no longer focus solely on what would appear to be the state's only 

concern: the guilt or innocence of the defendant for the crime 

for which the defendant was then being prosecuted. Instead, the 

focus would also be on the federal government's hypothetical future 

interest in assessing how dangerous the defendant's underlying 

conduct was. 

But that focus would interfere with the state's goals in 

legislating crimes to contain elements that sweep in non-violent 

conduct. After all, a state may have chosen to group together 

both violent and non-violent conduct under a particular label 

precisely because it did not want the criminal proceedings to focus 
-55- 

on whether the conduct in which the defendant engaged was violent 

or not. In this way, then, a concern solely of the federal 

government's -- identifying repeat violent offenders -- would 

distort state court criminal proceedings that, by design, seek to 

make the violent nature of the conduct irrelevant. 

Indeed, a version of this federalism concern seemed to 

be one that Congress took quite seriously in drafting ACCA. 

Congress rejected, on federalism grounds, initial legislative 

plans to formulate an alternative to this enhancement for fear 

that -- by creating a federal crime of robbery and burglary and 

the like -- the federal government would displace the state 

criminal process. See H.R. Rep. No. 99-849, at 3 (noting that the 

House Subcommittee on Crime "delet[ed] . . . specific predicate 

offenses . . . and added as predicate offenses . . . violent 

felonies under Federal or State law if the offense has as an 

element the use, attempted use, or threatened use of physical force 

against a person" (emphasis in original)). Thus, the Court's 

current categorical approach -- by attending to the textual 

directives to focus on the "conviction" and the "elements" of the 

offense -- has the virtue of ensuring that ACCA does not give rise 

to a version of the federalism-based concern about respecting the 

primacy of state criminal law over a broad range of crimes that we 

know Congress took quite seriously in crafting ACCA as it did. 
-56- 

II. 

Ordinarily, there is good reason to assume that Congress 

does not intend to enact criminal punishment schemes that are 

overly complicated. Such complicated schemes may fail to provide 

defendants with sufficient notice of the consequences of their 

actions. But the body of jurisprudence that has emerged from Taylor 

through Mathis does not give rise to this notice-based concern. 

The complexity of the categorical approach, as it has 

developed, is undeniable. This case makes that perfectly clear. 

But, as this case also demonstrates, in practice, that complexity 

serves to narrow the scope of this mandatory sentencing 

enhancement, at least as compared to the breadth that it might 

otherwise have. Thus, the current categorical approach respects 

-- rather than violates -- the notice-protecting principle of 

lenity that we have long presumed that Congress has in mind when 

it imposes severe criminal punishment. 

Perhaps, insofar as such an enhancement remains in 

place, there is some alternative to the categorical framework that 

Congress might adopt that would be superior to the one that the 

Supreme Court, based on the text of ACCA, requires us to 

administer. I do not deny that such a framework might be 

discovered. I do think, though, that we should not discount the 

very legitimate concerns that led Congress to direct us to focus 
-57- 

on the "conviction" and its "elements" -- rather than on the 

defendant's conduct or on statutory labels -- in drafting ACCA. 

And I think it important, as well, to highlight the related and 

quite sensible assumptions that have led the Court to interpret 

ACCA -- and the directive Congress wrote into it -- as it has. 

The categorical approach is difficult to apply. And its 

application may in many cases seem to exclude from ACCA's reach 

defendants whose past records appear to be violent ones. But, the 

simple fact is that it is hard to devise a system for identifying 

those individuals who as a class -- and thus regardless of 

particular circumstances that could be evaluated through 

individualized sentencing -- must be sentenced very harshly 

because of the violence that they have perpetrated in the past. 

It is thus important, it seems to me, not to lose sight of the 

significant ways in which the categorical approach, for all of its 

faults, reflects respect both for due process and federalism. 

Otherwise, we may find ourselves, in time, administering a revised 

framework that, though supposedly improved, actually creates 

problems more serious than those that it sought to solve.