United States Court of Appeals 

For the First Circuit 

No. 16-1949 

UNITED STATES OF AMERICA, 

Appellant, 

v. 

TRAVIS WINDLEY, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Patti B. Saris, U.S. District Judge] 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

Mark T. Quinlivan, Assistant U.S. Attorney, with whom William 

D. Weinreb, Acting U.S. Attorney, was on brief, for appellant. 

 Daniel N. Marx, with whom Fick & Marx LLP was on brief, for 

appellee. 

July 21, 2017 
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PER CURIAM. After Travis Windley pleaded guilty to being 

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

the district court sentenced him to ninety-six months' 

imprisonment, over the government's objection. The sole issue 

raised in this ensuing appeal by the government is whether the 

district court erred in determining that Windley's prior 

convictions in Massachusetts state court for assault and battery 

with a dangerous weapon (ABDW) were not convictions for a "violent 

felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. 

§ 924(e)(2)(B). That determination makes a difference because two 

of Windley's other convictions do qualify as violent felonies under 

ACCA1; hence, even one more conviction for a violent felony would 

have triggered a fifteen-year mandatory minimum sentence. Id. 

§ 924(e)(1). In light of our recent opinion in Bennett v. United 

States, No. 16-2039, slip op. at 54 (1st Cir. July 5, 2017),2 we 

affirm. 

 1 Both convictions were for Massachusetts assault with a 

dangerous weapon. See United States v. Whindleton, 797 F.3d 105, 

116 (1st Cir. 2015), cert. dismissed, 137 S. Ct. 23 (2016), and 

cert. denied, 137 S. Ct. 179 (2016). 

2 We recognize that questions have recently arisen as to 

whether the opinion in Bennett should be withdrawn in light of the 

death of the petitioner in that case. See Motion for Withdrawal 

of Court's Opinion, Bennett v. United States, No. 16-2039 (1st 

Cir. July 13, 2017). Nevertheless, we cite the opinion here 

because this panel, after careful consideration, reached the same 

conclusion about whether reckless offenses qualify as violent 

felonies under the force clause. Thus, by citing Bennett, we not 

only follow precedent that is currently binding but also endorse 

and adopt its reasoning as our own. 
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Massachusetts ABDW comes in two forms: an intentional 

form and a reckless form. See United States v. Tavares, 843 F.3d 

1, 12 (1st Cir. 2016), reh'g denied, 849 F.3d 529 (1st Cir. 2017). 

The parties tell us that Shepard documents relating to Windley's 

ABDW convictions no longer exist, so those convictions qualify as 

convictions for violent felonies only if both the intentional and 

the reckless forms of ABDW are violent felonies, see United States 

v. Faust, 853 F.3d 39, 51–53 (1st Cir. 2017) (citing, inter alia, 

Shepard v. United States, 544 U.S. 13 (2005)). In the wake of the 

Supreme Court's ruling that ACCA's residual clause is 

unconstitutionally vague, Johnson v. United States, 135 S. Ct. 

2551, 2557 (2015), we limit our inquiry to ACCA's so-called "force 

clause," which defines as a violent felony 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)(i). 

We have already held that intentional ABDW satisfies the 

identically worded force clause in the definition of a "crime of 

violence" in the sentencing guidelines. See Tavares, 843 F.3d at 

12–13. Nevertheless, if reckless ABDW is not a violent felony, we 

cannot conclude that Windley was convicted of a violent felony. 

So framed, the pivotal question is whether Massachusetts reckless 

ABDW, given its mens rea requirement, has as an element the 

"use . . . of physical force against the person of another." 18 

U.S.C. § 924(e)(2)(B)(i).
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Bennett held that the Maine offense of aggravated 

assault does not satisfy the force clause because it can be 

committed with a mens rea of recklessness. Bennett, slip op. at 

7–8, 54. Under the Maine criminal code, which is based on the 

Model Penal Code, a person behaves recklessly when that person 

"consciously disregards a risk that the person's conduct will 

cause" a result that is an element of the crime. Me. Stat. tit. 

17–A, § 35(3)(A); see Bennett, slip op. at 7–8. A conviction for 

aggravated assault in Maine, therefore, only requires proof that 

the defendant consciously disregarded a risk of causing bodily 

injury.3 See Me. Stat. tit. 17–A, §§ 35(3)(A), 208; see also 

Bennett, slip op. at 13. In Bennett, we reasoned that there is 

grievous ambiguity as to whether the "use . . . of physical force 

against the person of another" includes the reckless version of 

Maine aggravated assault, and that the rule of lenity therefore 

required us to conclude that it does not. Bennett, slip op. at 3–

4, 40–42, 52–54. 

The mens rea required for Massachusetts reckless ABDW 

provides no better fit with ACCA's requirement that force be used 

 3 At the time of the petitioner in Bennett's conviction, the 

crime came in three different forms: "intentionally, knowingly, 

or recklessly caus[ing]: A. Serious bodily injury to another; or 

B. Bodily injury to another with use of a dangerous weapon; or C. 

Bodily injury to another under circumstances manifesting extreme 

indifference to the value of human life." Bennett, slip op. at 7 

(quoting Me. Rev. Stat. Ann. tit. 17-A, § 208 (1981)). 
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against the person of another. Cf. United States v. Fish, 758 

F.3d 1, 9–10 (1st Cir. 2014). While a conviction for Massachusetts 

ABDW requires that the wanton or reckless act be committed 

intentionally, Commonwealth v. Burno, 487 N.E.2d 1366, 1368–69 

(Mass. 1986), it does not require that the defendant intend to 

cause injury, see Commonwealth v. Welansky, 55 N.E.2d 902, 910–12 

(Mass. 1944); Commonwealth v. Correia, 737 N.E.2d 1264, 1266–67 

(Mass. App. Ct. 2000); see also Fish, 758 F.3d at 10, or even be 

aware of the risk of serious injury that any reasonable person 

would perceive, see Welansky, 55 N.E.2d at 910; Commonwealth v. 

Hall, No. 13-P-0021, 2014 WL 1235920, at *1 & n.1 (Mass. App. Ct. 

Mar. 27, 2014) (unpublished disposition); Commonwealth v. Cadoff, 

No. 00-P-0218, 2002 WL 407972, at *1 (Mass. App. Ct. Mar. 15, 2002) 

(unpublished disposition); see also Bennett, slip op. at 26 n.10. 

Like Maine's aggravated assault offense, see, e.g., State v. 

Martin, 916 A.2d 961, 965 (Me. 2007); State v. Pineo, 798 A.2d 

1093, 1097–98 (Me. 2002), reckless driving that results in a nontrifling injury has led to convictions for Massachusetts reckless 

ABDW, see, e.g., Commonwealth v. Green, No. 02-P-0678, 2003 WL 

22399532 at *1, *3-4 (Mass. App. Ct. Oct. 21, 2003) (unpublished 

disposition); Cadoff, 2002 WL 407972, at *1; Commonwealth v. 

Subenko, No. 99-P-1404, 2001 WL 1473887, at *1, *4 (Mass. App. Ct. 

Nov. 20, 2001) (unpublished disposition); see also Commonwealth v. 

Sostilio, 89 N.E.2d 510, 511–12 (Mass. 1949) (upholding a 
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conviction for reckless manslaughter, which has the same mens rea 

requirement as reckless ABDW, in a reckless driving case). These 

are the types of cases that give rise to grievous ambiguity as to 

whether the use of physical force against the person of another 

includes the reckless causation of bodily injury. See Bennett, 

slip op. at 40-43. Thus, following and adopting the sound 

reasoning of Bennett, we conclude that Massachusetts reckless ABDW 

is not a violent felony under the force clause. 

For the foregoing reasons, we affirm Windley's sentence.