United States Court of Appeals

For the First Circuit

Nos. 05-2229, 05-2230

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant,

v.

CURTIS HOLLOWAY,

True Name: Curtis Kareem Holloway,

a/k/a Curtis H. Holloway,

a/k/a Curtis K. Holloway,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Stahl, Senior Circuit Judge

and Howard, Circuit Judge.

Syrie D. Fried for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom

Michael J. Sullivan, United States attorney was on brief, for

appellee.

Anne C. Goldbach, President, on brief for amicus curiae

Massachusetts Association of Criminal Defense Lawyers.

August 31, 2007
 These security officers were licensed by the Boston Police 1

Department to patrol housing developments.

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HOWARD, Circuit Judge. Curtis Holloway conditionally

pleaded guilty to one count of being a felon in possession of

ammunition, see 18 U.S.C. § 922(g)(1), and he was sentenced to time

served. The government appeals the sentence, and Holloway crossappeals the district court's denial of his motion to suppress.

I.

We recount the facts in the light most favorable to the

district court's ruling on the motion to suppress, but only to the

extent that they have support in the record and are not clearly

erroneous. See United States v. Sealey, 30 F.3d 7, 7 (1st Cir.

1994).

On December 26, 2001, special officers Anthony 1

Crutchfield and Shaheed Hall were patrolling the streets around

housing projects in the Roxbury section of Boston, Massachusetts.

At 10:30 p.m., the officers saw Holloway chasing another

individual, Memogne Lamothe. As Holloway drew closer, the officers

saw him reach into his pants pocket, as if for a weapon. Lamothe

ran inside the building at 144 Seaver Street, and the door locked

behind him, preventing Holloway from following him. Holloway

waited outside for several minutes, speaking with various

individuals. Ultimately, Gerald Scott arrived and spoke with

Holloway. Scott proceeded to shuttle back and forth between
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Holloway and the entryway to the building at 144 Seaver Street,

apparently talking to someone inside. Holloway and Scott were then

"buzzed" into the building.

Fearing a continuation of the earlier chase, Crutchfield

and Hall immediately called their supervisor, Patrick Bailey, and

the three officers entered the building using their pass key. Once

inside, the officers saw Holloway, Scott, and Lamothe talking on

the stairway in a common area of the building. The officers

approached the men and asked what was going on. Holloway stated

that nothing was going on, but Lamothe responded that he lived in

the building, that he knew they should not be loitering in a common

area, and that they would continue their conversation in his

apartment. At this point the officers asked the three to provide

identification. Scott and Lamothe cooperated, but Holloway

refused. The officers persisted, and Holloway continued to say

that he did not have to give them identification. Lamothe then

unlocked his apartment door, but the officers directed him not to

move. Lamothe complied, but Holloway suddenly shoved Lamothe into

the officers and ran into the apartment. Hall and Crutchfield

followed, with Hall entering first and immediately yelling "Gun."

Upon entering, Crutchfield saw Holloway sitting on a chair and

ordered him to the ground. Holloway was arrested after a struggle,

and the officers recovered a loaded pistol that Hall had seen

Holloway shove under the seat of his chair. Holloway was
 Referring to the brief investigatory stop described by the 2

Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). 

 The ACCA provides that: 3

In the case of a person who violates section 922(g) of

this title and has three previous convictions ... for a

violent felony or a serious drug offense...such person

shall be fined under this title and imprisoned not less

than fifteen years....

18 U.S.C. §924(e)(1). 

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subsequently indicted for being a felon in possession of ammunition

that traveled in interstate commerce. See 18 U.S.C. § 922(g)(1).

Holloway moved to suppress the ammunition on the grounds

that the officers had neither reasonable suspicion that criminal

activity was afoot to justify a Terry stop nor probable cause to 2

arrest when they seized Holloway. Therefore, Holloway maintained,

any evidence that resulted from the wrongful seizure must be

suppressed. After an evidentiary hearing, at which only

Crutchfield testified, the district court denied the motion without

opinion. Thereafter, Holloway entered a plea of guilty,

conditioned on the right to appeal the denial of his suppression

motion.

At sentencing, the government argued that Holloway should

be sentenced to a mandatory fifteen-year prison term under the

Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), on the basis 3

of Holloway's three Massachusetts convictions for assault and

battery. The government argued that each conviction was a "violent
 [T]he term 'violent felony' means any crime punishable by 4

imprisonment for a term exceeding one year...that-

(i) has as an element the use, attempted

use, or threatened use of physical force

against the person of another; or 

(ii) is burglary, arson, or extortion,

involves use of explosives, or otherwise

involves conduct that presents a serious

potential risk of physical injury to

another....

18 U.S.C. §924(e)(2)(B). 

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felony" under the ACCA because each was based on a charging 4

document which alleged that Holloway did "assault and beat" the

victim. Holloway argued that assault and battery under

Massachusetts law includes two types of conduct--harmful (violent)

conduct and nonharmful (offensive or nonconsensual) conduct--and

only convictions under the first prong are crimes of violence.

Holloway emphasized that the "assault and beat" language was used

to charge both types of batteries, and thus the charging language

was mere "boilerplate" that said nothing about the nature of the

underlying crime. Holloway further contended that the convictions

could not be deemed predicate violent offenses under the ACCA

without violating the principles set forth in United States v.

Shepard, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S.

575 (1990) because there were no other relevant judicial materials

describing the facts of the Massachusetts convictions. The

district court accepted Holloway's position and sentenced him to

time served.
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II.

A. Motion to Suppress

Holloway maintains that the district court erred in

denying his motion to suppress because the officers lacked the

reasonable suspicion necessary for a Terry stop. Holloway

emphasizes that the officers only saw three men having a peaceful

conversation in the stairwell, with no hint of violence or other

criminal activity. The government rejoins that Holloway was never

seized, as he never submitted to the officers' authority. 

In evaluating a district court's assessment of a motion

to suppress, we review findings of fact for clear error and legal

conclusions de novo. United States v. Meada, 408 F.3d 14, 20 (1st

Cir. 2005). We "will uphold a denial of a motion to suppress if

any reasonable view of the evidence supports it." United States v.

Garner, 338 F.3d 78, 80 (1st Cir. 2003) (internal citation and

quotation omitted). 

The primary issue is whether Holloway was "seized" by the

officers in the hallway before he dashed into the apartment.

"Under the Fourth Amendment, a seizure occurs when a police

officer, by means of physical force or a show of authority, has in

some way restrained the liberty of a citizen." Sealey, 30 F.3d at

9. The show of authority must be such that a reasonable person

would believe that he was not free to leave. See United States v.

Smith, 423 F.3d 25, 28-29 (1st Cir. 2005). In addition, a seizure
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requires that the citizen must actually submit to the show of

authority. See California v. Hodari D., 499 U.S. 621, 626-629

(1991); Smith, 423 F.3d at 31-32. 

 The record makes it abundantly clear that Holloway never

submitted to the officers' show of authority. Holloway verbally

rejected the officers' instructions before escalating his

resistance by shoving Lamothe into the officers and trying to flee.

Such conduct does not manifest an intent to submit to the officers'

authority. See, e.g., Smith, 423 F.3d at 31-32 (attempting to flee

and struggling with officers indicates no submission to police

authority); Sealey, 30 F.3d at 9-10 (ignoring officer's questions

and fleeing was not submission to authority). Holloway was not

actually seized until the officers physically overpowered and

handcuffed him in Lamothe's apartment. See Hodari D., 499 U.S. at

629 (suspect not seized until tackled by officer). Thus, the

officers' recovery of the gun that Holloway discarded before being

arrested was not the result of a wrongful seizure. See generally

Sealey, 30 F.3d at 10 (contraband discarded by suspect while

fleeing police was not fruit of the seizure).

Holloway counters that he was "seized" when he submitted

to the officers' show of authority by initially answering their

questions, even if his answers were unsatisfactory to the officers.

This contention is unpersuasive for a host of reasons. First, the

officers' initial approach and general inquiry did not trigger
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Fourth Amendment scrutiny even though Holloway responded. See

Smith, 423 F.3d at 28 (officers may approach citizens and ask

questions without any degree of suspicion). Similarly,

"interrogation relating to one's identity or a request for

identification by the police does not, by itself, constitute a

Fourth Amendment seizure." Hiibel v. Sixth Judicial Dist. Ct., 542

U.S. 177, 185 (2004)(internal citation and quotation omitted).

Lastly, Holloway's verbal challenges to the officers' authority --

generally to the effect that the officers had no authority to

bother him or ask for identification -- were not submissions to the

authority but part of his conduct in evading it.

 B. Sentencing

The government argues that the district court erred in

refusing to sentence Holloway under the ACCA. The government

emphasizes that the charging documents for each of the

Massachusetts convictions specified that Holloway did "assault and

beat" his victim, which the government maintains suffices to show

that the underlying crime was a violent rather merely offensive

battery. Holloway rejoins that the "assault and beat" language in

the Massachusetts charging documents is not determinative because

it is mere boilerplate and says nothing about the nature of the

underlying offense. We review the district court's interpretation

of the ACCA de novo. United States v. Miller, 478 F.3d 48, 50 (1st

Cir. 2007).
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Holloway's contention is foreclosed by our precedent

which holds that a Massachusetts charging document that states the

defendant "assault[ed] and beat" the victim is sufficient to

establish that the conviction was for a violent battery and

therefore a "crime of violence" for purposes of the guidelines.

See United States v. Estevez, 419 F.3d 77, 82 (1st Cir. 2005),

cert. denied, 546 U.S. 1192 (2006); United States v. Santos, 363

F.3d 19, 23-24 (1st Cir. 2004); United States v. Mangos, 134 F.3d

460, 464 (1st Cir. 1998); see also United States v. Fink,

___F.3d___, ___ (1st Cir. 2007). Moreover, we have stated that the

definitions of "violent felony" in the ACCA and "crime of violence"

in U.S.S.G. § 4B1.1 are essentially the same, and that we may look

to cases dealing with either to inform our categorical inquiry.

See, e.g., United States v. Leahy, 473 F.3d 401, 411-12 (1st Cir.

2007); United States v. Jackson, 409 F.3d 479, 479 n. 1 (1st Cir.

2005). At bottom, our focus is on the usual type of proscribed

conduct. Santos, 363 F.3d at 23. Thus, we interpreted the

charging language in the most reasonable sense--that "the assault

amounted to a beating" of the victim. Mangos, 134 F.3d at 464. 

Indeed as the Supreme Court recently held, "[w]e do not view [the

categorical approach] as requiring 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." James v. United States, 127 S. Ct. 1586, 1597 (2007).
 We also note, as did the prior panels, that there is nothing in 5

the record to suggest that the batteries at issue here were of the

offensive rather than the violent variety. See Santos, 363 F.3d at

24; Mangos, 134 F.3d at 464. 

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"[T]he proper inquiry is whether the conduct encompassed by the

elements of the offense, in the ordinary case, present a serious

risk of injury to another." Id. Thus, the district court's 5

conclusion was in error. 

Holloway identifies no change in the law that warrants

our disregard of this circuit precedent. Instead, Holloway (and

the amici) look backward to our decision in United States v.

Harris, 964 F.2d 1234 (1st Cir. 1992), arguing that our post-Harris

precedent fundamentally misinterpreted Harris. However, it is

axiomatic that new panels are bound by prior panel decisions in the

absence of supervening authority. See, e.g., United States v.

Allen, 469 F.3d 11, 17-18 (1st Cir. 2006). Only the Supreme Court

or an en banc court can overturn prior panel precedent in ordinary

circumstances, and until such time, we are bound by Estevez and

Santos. 

III.

For the reasons stated above, Holloway's conviction is

affirmed, his sentence is vacated, and the case is remanded for

resentencing consistent with this opinion.