United States Court of Appeals 

For the First Circuit 

No. 14-2319 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

VERISSIMO TAVARES, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Thompson, Selya and Kayatta, 

Circuit Judges. 

 Judith H. Mizner, Assistant Federal Public Defender, with 

whom Federal Public Defender Office was on brief, for appellant. 

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

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

appellee. 

December 1, 2016 
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KAYATTA, Circuit Judge. Convicted of being a felon in 

possession of a firearm, Verissimo Tavares appeals both the 

conviction and his sentence. He claims that the district court 

erred in admitting improper and prejudicial expert testimony 

concerning the absence of fingerprints on the gun that the jury 

found Tavares to have possessed. He also claims that the district 

court erred in its guideline sentencing calculations by treating 

his convictions for resisting arrest and assault and battery with 

a dangerous weapon as "crime[s] of violence." For the following 

reasons, we affirm the conviction but remand for reconsideration 

of the sentence. 

I. BACKGROUND

Before dawn on August 4, 2013, two Boston police officers 

responded to a dispatch about a disturbance in a Boston 

neighborhood. As the officers dispersed the crowd, they heard 

gunshots emanating from the next street; when they went to 

investigate the source, they caught sight of a figure, subsequently 

revealed to be Tavares, riding away on a motor scooter. A chase 

ensued. 

One of the pursuing police officers testified that he 

saw an object in Tavares's hands. Another testified that he saw 

Tavares throw an object into the yard of a nearby dwelling at 71 

Clarkson Street. The chase ended when the police took Tavares 

into custody. Searching for the hurled object, one of the officers 
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discovered a silver handgun in the yard of 71 Clarkson Street. 

Detectives were summoned to examine the firearm. They determined 

that the handgun was a semiautomatic firearm, loaded with five 

rounds of ammunition. 

A federal grand jury charged Tavares as a felon in 

possession of a firearm. See 18 U.S.C. § 922(g)(1). He maintained 

his innocence, and the case went to trial. During the government's 

case in chief, several police officers testified about the chase, 

the arrest, and the retrieval of the firearm. The government also 

presented the testimony of Richard Auclair, a fingerprint expert 

who held the position of Criminalist II in the Latent Print Unit 

(the Unit) at the Boston Police Department. The defense rested 

without presenting any evidence. The jury found Tavares guilty. 

In anticipation of sentencing, the probation department 

prepared a presentence investigation report (the PSR). The Report 

recommended that the district court apply a four-level career 

offender enhancement under the sentencing guidelines, see U.S.S.G. 

§ 2K2.1(a)(2), based on a conclusion that Tavares's prior 

Massachusetts convictions for resisting arrest, see Mass. Gen. 

Laws ch. 268, § 32B(a), and for assault and battery with a 

dangerous weapon (ABDW), see id. ch. 265, § 15A(b), were both 

"crime[s] of violence." Tavares objected to the classification of 

his putative predicate offenses as crimes of violence under the 

residual clause of the sentencing guidelines' career offender 
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provision. See U.S.S.G. § 4B1.2(a)(2) (Nov. 2014 ed.); id. at 

§ 2K2.1(a)(2), cmt. n.1. Relying on our decisions in United States 

v. Glover, 558 F.3d 71, 80–81 (1st Cir. 2009), and United States 

v. Almenas, 553 F.3d 27, 33–34 (1st Cir. 2009), the district court 

overruled this objection. In so doing, the district court deemed 

both prior convictions to be for crimes of violence under the 

residual clause. The career offender enhancement, coupled with 

other adjustments not now in issue, yielded an advisory guideline 

range of 120-150 months, necessarily capped at 120 months by the 

ten year maximum applicable to the statute of conviction. See 18 

U.S.C. § 924(a)(2). Using the advisory guideline range as a "place 

to start" and mulling the factors enumerated in 18 U.S.C. 

§ 3553(a), the court imposed an 84-month prison term. This timely 

appeal followed. 

II. ANALYSIS

Challenging his conviction, Tavares argues that the 

district court erred, to his prejudice, by admitting over his 

objection a portion of Auclair's expert testimony. Alternatively, 

he argues that the district court erred in calculating his 

guideline sentencing range by counting his prior convictions as 

convictions for crimes of violence. We address each argument in 

turn. 
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A. Expert Testimony

The principal issue at trial was whether Tavares had 

possessed the gun that the police found in the yard at 71 Clarkson 

Street. Mainly through cross-examination and argument, Tavares 

sought to show that the government had not proved his possession 

of the weapon beyond a reasonable doubt. To bolster this claim, 

he suggested (among other things) that the police officers' 

testimony about his involvement with the weapon was inconsistent; 

that the weapon, when found, did not bear his fingerprints and, 

thus, had not been in his hands; and that the police had rushed to 

judgment. The government countered, in part, by presenting 

Auclair's testimony. 

After being duly qualified as a criminalist, Auclair 

testified about the significance of the fact that the examination 

of the gun by the police laboratory revealed only a very partial 

print that was itself insufficient to implicate or exclude Tavares. 

Auclair delineated the factors that affect recovery of usable 

prints (including the quality of ridge skin, the texture of the 

surface involved, the nature of print deposition, the treatment of 

the surface after print deposition, and environmental conditions).1 

After explaining the procedures used by the Unit to preserve 

 

1 In the context of fingerprint examination, "deposition" is the 

act of depositing something (such as sand, snow, or mud) on a 

surface, especially over a period of time. 
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prints, Auclair testified that the firearm removed from the yard 

at 71 Clarkson Street did not reveal any usable prints. 

So far, so good. During direct examination, however, 

the prosecutor asked Auclair about the percentage of cases in which 

usable prints were recovered from examined firearms, that is, what 

percentage of examined guns were found to contain fingerprints 

with sufficient ridge detail to allow the authorities to make an 

identification. Over the defendant's objection, the court allowed 

Auclair to opine, based primarily on the Unit's experience over a 

period of nearly nine years, that usable prints had been recovered 

from approximately 16% of firearms examined. Under crossexamination, Auclair explained that his opinion derived in part 

from a compilation of the Unit's fingerprint analyses completed by 

an intern: we say "completed" because the Unit regularly kept 

such data on a series of spreadsheets, and the intern had simply 

updated those data and tabulated them. Auclair could not say, 

however, either what procedures were used in the process of 

compilation or what oversight of the intern was provided by Unit 

staff. He could opine, however, that the 16% figure was generally 

consistent with his own personal experience in examining hundreds 

of guns. After cross-examination, Tavares moved to strike 

Auclair's opinion. The court denied his motion. 

On appeal, Tavares challenges the court's rulings 

admitting and refusing to strike this portion of Auclair's 
- 7 - 

testimony. Specifically, Tavares argues, first, that the 

testimony lacked a proper foundation; and second, that the 

testimony was both not relevant and unfairly prejudicial. 

We review a trial court's decision to admit or exclude 

evidence for abuse of discretion. See United States v. Pires, 642 

F.3d 1, 10 (1st Cir. 2011); United States v. Stierhoff, 549 F.3d 

19, 27 (1st Cir. 2008). In carrying out this task, we afford 

"broad deference to the determination made by the district court 

as to the reliability and relevance of expert testimony." 

Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 

2006). Absent a material error of law, we will not upset such a 

determination unless it appears that the district court "committed 

a meaningful error in judgment." Ruiz-Troche v. Pepsi Cola of 

P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir. 1998) (quoting 

Anderson v. Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988)). 

Against this backdrop, we turn first to Tavares's 

argument that the challenged testimony lacked a sufficient 

foundation. The touchstone for the admission of expert testimony 

in federal court litigation is Federal Rule of Evidence 702. The 

rule provides in relevant part that, as a precursor to giving 

expert testimony, an expert must be "qualified . . . by knowledge, 

skill, experience, training, or education" and must possess 

specialized knowledge that "will help the trier of fact to 

understand the evidence or to determine a fact in issue." Fed. R. 
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Evid. 702. The rule further demands that such opinion testimony 

rest on "sufficient facts or data." Id. 

These requirements obligate a trial court to act as a 

gatekeeper in order to ensure, as a condition of admissibility, 

that proffered expert testimony rests on a sufficiently 

trustworthy foundation. See Daubert v. Merrell Dow Pharms., Inc., 

509 U.S. 579, 597 (1993). Where, as here, the factual basis of an 

expert's testimony is called into question, the district court 

must determine whether the testimony has "a reliable basis" in 

light of the knowledge and experience of the relevant discipline. 

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999) (quoting 

Daubert, 509 U.S. at 592). We, in turn, review such determinations 

for abuse of discretion. See id. at 142. 

Tavares does not question Auclair's credentials as a 

fingerprint expert. Nor could he: Auclair earned a master's 

degree in forensics, underwent additional training upon joining 

the Unit, worked in the field for several years, and passed a 

series of annual proficiency tests. 

Expert testimony, however, can for the most part be no 

better than the information provided to the expert. That principle 

is summed up in the familiar phrase "garbage in, garbage out." 

Tavares says that, whatever Auclair's qualifications, he lacked a 

sufficiently reliable basis for offering an opinion about the rate 

at which usable fingerprints appear on examined firearms. 
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This aspect of Tavares's challenge focuses on the 

alleged inadequacies of the compilation of data upon which Auclair 

drew in reaching his opinion about the 16% rate of usable prints 

recovered from examined firearms. The last step in that 

compilation was taken by an intern (not working under Auclair's 

supervision), and Auclair did not profess to know what procedures 

the intern had followed in compiling and tabulating the data. 

Although Auclair was not aware of the specific 

procedures used to compile and tabulate the data that went into 

the intern's report, he made clear that the report was neither an 

ad hoc nor an informal production. Rather, the report was the 

latest iteration in ordinary course of a type of statistical 

compilation that the Unit had periodically produced on earlier 

occasions. These past reports were kept by the Unit in the 

ordinary course of its operations and were based on data that the 

Unit had collected and maintained in spreadsheets over a number of 

years. These spreadsheets had been prepared by Unit staff 

(including individuals with responsibility for technical 

information within the Unit). The district court did not abuse 

its discretion in finding that Auclair, given his position and 

expertise, was entitled to rely on these spreadsheets. See United 

States v. Corey, 207 F.3d 84, 89 (1st Cir. 2000) (approving 

expert's reliance on "materials maintained at ATF 'research 

libraries,' which contained information on approximately five 
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thousand different firearms"); cf. United States v. Smith, 566 

F.3d 410, 412 (4th Cir. 2009) (upholding admission of ATF agent's 

testimony that relied on "an ATF computerized database that had 

been compiled 'over many, many years as agents have done this 

practice'" in response to a challenge under the best evidence 

rule); Clausen v. M/V New Carissa, 339 F.3d 1049, 1059-61 (9th 

Cir. 2003) (upholding expert testimony that relied on history and 

reports created by others, even where there was no supported peerreviewed literature). The intern's report merely updated these 

spreadsheets and tabulated the results, and it was within the 

court's discretion to find that Auclair could reasonably rely on 

that report as well. 

What is more, Auclair testified that the percentage 

identified in the report for the Unit as a whole was "generally 

consistent" with his own long experience and that the scientific 

publications he had consulted did not affect this assessment. This 

testimony provided a basis for concluding that the department's 

report was materially reliable. It also provided an independent 

basis for the basic point being made: it was by no means unusual 

to find no usable prints on a gun. On that point, it could have 

hardly made any difference whether the percentage of guns found to 

have usable prints was exactly 16% or "generally" 16%. All in 

all, we think that it was within the district court's discretion 
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to accept Auclair's determination that the updated Unit statistics 

were reliable. 

We likewise reject the defendant's related argument that 

Auclair's testimony lacked a proper foundation because he had not 

performed or supervised the work that produced the compilation. 

An expert may rely on information not itself admitted into evidence 

when forming an opinion. See Jones ex rel. United States v. Mass. 

Gen. Hosp., 780 F.3d 479, 494 n.8 (1st Cir. 2015). So, too, an 

expert may rely on information that is not independently 

admissible. See Corey, 207 F.3d at 89. Nor is there any 

requirement that the information relied on by an expert must have 

been compiled by him or under his supervision. See Crowe v. 

Marchand, 506 F.3d 13, 18 (1st Cir. 2007). And though "the 

entirety of [an expert's] testimony cannot be the mere repetition 

of 'the out-of-court statements of others,'" United States v. Luna, 

649 F.3d 91, 105 (1st Cir. 2011) (quoting United States v. Cormier, 

468 F.3d 63, 73 (1st Cir. 2006)), that was not the case here: 

Auclair's reliance on the compilation represented only a small 

fraction of his testimony on the subject of unusable prints and 

was corroborated by his familiarity with past calculations by the 

Unit and his own experience. 

Tavares's embrace of our decision in United States v. 

Giambro, 544 F.3d 26 (1st Cir. 2008), does not advance his cause. 

There, the trial court found that the basis for the expert's 
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testimony was "purely anecdotal," and was otherwise unreliable. 

Id. at 33. Our affirmance of that finding as not an abuse of 

discretion simply does not mean that it was an abuse of discretion 

to admit Auclair's testimony that rested in its material force on 

several independent, non-anecdotal grounds. 

To say more on this point would be to paint the lily. 

In the circumstances here, we think that any question about the 

factual underpinnings of Auclair's opinion goes to its weight, not 

to its admissibility. See Milward v. Acuity Specialty Prods. Grp., 

Inc., 639 F.3d 11, 22 (1st Cir. 2011). So, too, deciding whether 

the data were of a type that Auclair could reasonably rely upon 

under Federal Rule of Civil Procedure 703 was well within the trial 

court's discretion. See Corey, 207 F.3d at 92. 

The defendant's challenge to the relevance of Auclair's 

testimony is equally unavailing. "Evidence is relevant if: (a) 

it has any tendency to make a fact more or less probable than it 

would be without the evidence; and (b) the fact is of consequence 

in determining the action." Fed. R. Evid. 401. In this instance, 

we think that evidence reflecting the overall rate at which usable 

fingerprints are recovered from firearms was plainly relevant and 

likely helpful to the jury in determining what significance, if 

any, should be accorded to the absence of fingerprints on the 

firearm found at 71 Clarkson Street. Surely, such evidence had a 

tendency to make a fact of consequence more probable: it suggested 
- 13 - 

that the absence of usable prints did not mean, ipso facto, that 

the weapon was never in the defendant's hands, or that the police 

work was shoddy. See, e.g., United States v. Burdeau, 168 F.3d 

352, 356–57 (9th Cir. 1999). Seen in this light, the evidence 

"assisted the jury in understanding that . . . certain objects are 

not particularly conducive to finding prints." United States v. 

Glover, 479 F.3d 511, 518 (7th Cir. 2007). Absent Auclair's 

testimony, "the jury may not have understood how [the defendant] 

could have possessed the weapon without leaving prints." Id. 

In an effort to deflect the force of this reasoning, 

Tavares points out that the 16% figure did not distinguish between 

firearms that were subjected to the so-called "fuming" process 

before they were sent to the lab (like the firearm in this case) 

and those that were not.2 This omission, Tavares submits, rendered 

the testimony too general to be relevant. 

This argument is futile. There is simply no requirement 

that statistics must in all instances separately account for every 

potentially significant variable in order even to be relevant. 

See Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 468-

69 (8th Cir. 2004). That is true of the "fuming" variable here. 

 

2 As explained by Auclair, "fuming" is the process in which a 

firearm is placed in a chamber filled with a heated glue substance. 

The glue then adheres to the moisture in the fingerprint, hardens 

the moisture, and turns the fingerprint white, rendering the print 

visible and less likely to be rubbed away. 
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The defendant had the right--which he exercised--to cross-examine 

Auclair about the chances that the recovery percentage might differ 

materially in cases in which fuming was performed earlier. No 

more was exigible: after all, district courts have "broad latitude 

. . . with respect to the determination of the admissibility of 

expert testimony," Crowe, 506 F.3d at 18--and the limits of that 

broad discretion were not exceeded here. 

Tavares has a fallback position. He contends that the 

challenged testimony, even if relevant, ought to have been excluded 

under Federal Rule of Evidence 403. Rule 403 provides, in 

pertinent part, that "[t]he court may exclude relevant evidence if 

its probative value is substantially outweighed by a danger of . 

. . unfair prejudice, confusing the issues, misleading the jury," 

or the like. Fed. R. Evid. 403. The rule is addressed to the 

district court's informed discretion and its due administration 

recognizes that "[t]his balancing is best performed by the trial 

judge, who has an intimate familiarity with the ebb and flow of 

the case and with its nuances." United States v. Raymond, 697 

F.3d 32, 38 (1st Cir. 2012). "[O]nly rarely--and in 

extraordinarily compelling circumstances--will we, from the vista 

of a cold appellate record, reverse a district court's on-the-spot 

judgment concerning the relative weighing of probative value and 

unfair effect." Id. (quoting Freeman v. Package Mach. Co., 865 

F.2d 1331, 1340 (1st Cir. 1988)). 
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Under this generous prescription, the district court's 

admission of the challenged testimony cannot be faulted. As we 

have already explained, the evidence was plainly relevant. 

Tavares, in turn, points to no prejudice that was so substantial 

as to compel exclusion. To be sure, Auclair's opinion was 

prejudicial in the sense that it aided the government's theory of 

the case and diminished the force of Tavares's theory of the case. 

But Rule 403 guards only against unfair prejudice, see United 

States v. Benedetti, 433 F.3d 111, 118 (1st Cir. 2005), and the 

probative value of this evidence, though modest, was not 

substantially outweighed by any unfairly prejudicial effect. 

Hence, there was no abuse of discretion in admitting that evidence. 

B. Classification of Prior Offenses as "Crimes of Violence"

Under § 2K2.1(a) of the United States Sentencing 

Guidelines, Tavares's prior criminal record played a substantial 

role in setting his base offense level and Guidelines sentencing 

range. Pursuant to § 2K2.1(a)(4), his base offense level increased 

from 12 to 20, and--in Tavares's case--his sentencing range 

increased from 37–46 months to 84–105 months, if he committed the 

subject offense "subsequent to sustaining one felony conviction of 

either a crime of violence or a controlled substance offense." 

U.S.S.G. § 2K2.1(a)(4)(A). Under § 2K2.1(a)(2), his base offense 

level increased by an additional four levels, and--in Tavares's 

case--his sentencing range increased from 84–105 months to 120–
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150 months, if he committed the subject offense subsequent to 

sustaining two such convictions.3 

Over Tavares's objection, the district court found that 

both of these enhancements were proper and assigned Tavares a base 

offense level of 24 under these provisions. The court also adopted 

the PSR's two-level enhancement because the firearm had been 

stolen, U.S.S.G. § 2K2.1(b)(4)(A), resulting in a total offense 

level of 26. In adopting the base offense level of 24, the district 

court relied on the fact that Tavares had previously been convicted 

of two offenses in Massachusetts state court: Resisting Arrest 

and Assault and Battery with a Dangerous Weapon ("ABDW"). The 

parties agree that neither offense is a controlled substance 

offense. We must therefore determine whether the district court 

properly categorized each of these state court offenses as a "crime 

of violence" under the Guidelines. See U.S.S.G. § 4B1.2(a); see 

also id. § 2K2.1, cmt. n.1 (adopting definition of "crime of 

violence" in § 4B1.2(a)). 

As relevant here, at the time of Tavares's sentencing, 

the term "crime of violence" was defined as 

any offense under federal or state law, 

punishable by imprisonment for a term 

exceeding one year, that-- 

 

3 Effectively, the actual sentencing range can only increase to 

120 months because his conviction under 18 U.S.C. § 922(g)(1) 

carries a maximum term of imprisonment of ten years. 
- 17 - 

(1) has as an element the use, attempted use, 

or threatened use of physical force 

against the person of another, or 

(2) is burglary of a dwelling, arson, or 

extortion, involves use of explosives, or 

otherwise involves conduct that presents 

a serious potential risk of physical 

injury to another. 

U.S.S.G. § 4B1.2(a) (as amended Nov. 1, 2009).4 Neither party 

maintains that Tavares's Resisting Arrest and ABDW offenses fall 

within any of the enumerated crimes of subsection (2). The parties 

further agree that Johnson v. United States (Johnson II), 135 

S. Ct. 2551 (2015), should lead us to deem unconstitutionally vague 

the final clause of subsection (2) (commonly referred to as the 

"residual" clause). See id. at 2560, 2563; see also, e.g., United 

States v. Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (collecting 

cases applying Johnson II to § 4B1.2(a)); United States v. 

Calabretta, 831 F.3d 128, 137–38 (3d Cir. 2016) (reaching same 

conclusion). But see Beckles v. United States, 616 F. App'x 415, 

415–16 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510 (2016) 

(holding Johnson II does not apply to crimes listed as crimes of 

violence in the commentary to § 4B1.2); United States v. Matchett, 

802 F.3d 1185, 1196 (11th Cir. 2015) (holding that the sentencing 

guidelines cannot be unconstitutionally vague). We therefore 

 

4 Section 4B1.2(a)(2) was subsequently amended on July 13, 2016 to 

alter subsection (2). U.S.S.G. § 4B1.2(a)(2) (as amended July 13, 

2016). 
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proceed to analyze whether the prior offenses at issue qualify as 

crimes of violence under subsection (1) of § 4B1.2(a), commonly 

referred to as the "force" clause. 

1. Resisting Arrest

The Massachusetts offense of Resisting Arrest is defined 

as 

knowingly prevent[ing] or attempt[ing] 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. 

Mass. Gen. Laws ch. 268, § 32B(a).5

The parties agree that the version of this offense set 

forth in subsection (2) can no longer be considered to be a "crime 

of violence" under § 4B1.2(a)(2) of the Guidelines in the wake of 

Johnson II. The government argues, instead, that the version of 

Resisting Arrest described in subsection (1) is a crime of violence 

under the force clause according to our existing case law, United 

States v. Almenas, 553 F.3d 27, 32–33 (1st Cir. 2009), and that 

subsection (2) is divisible from subsection (1) within the meaning 

 

5 Tavares was convicted of resisting arrest in 2008. The statutory 

language has not changed since then. 
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of Descamps v. United States, 133 S. Ct. 2276, 2284 (2013). We 

should therefore remand this case, says the government, so that 

the district court may consider whether documents that the 

government supplies as permitted by Shepard v. United States, 544 

U.S. 13, 26 (2005)6 establish that the version of Resisting Arrest 

for which Tavares stood convicted was the subsection (1) version 

("using or threatening to use physical force or violence against 

the police officer or another," Mass. Gen. Laws ch. 268, 

§ 32B(a)(1)), rather than subsection (2). 

Tavares does not dispute that the two versions of the 

Massachusetts Resisting Arrest offense set forth in 

subsections (1) and (2) are divisible under Descamps. Nor does 

Tavares disagree that remand for consideration of any Shepard 

documents would be appropriate if the subsection (1) version of 

the offense is a crime of violence. Instead, Tavares argues that 

the subsection (1) version of the Resisting Arrest offense itself 

fails to qualify categorically as a crime of violence. 

In making this argument, Tavares correctly concedes that 

we have previously held precisely to the contrary; that is, that 

the subsection (1) version of the Massachusetts Resisting Arrest 

offense is a crime of violence under the force clause. See United 

 

6 Shepard documents include documents "from the convicting court, 

such as charging documents, plea agreements, plea colloquies, and 

jury instructions." United States v. Serrano-Mercado, 784 F.3d 

838, 843 (1st Cir. 2015). 
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States v. Weekes, 611 F.3d 68, 72–73 (1st Cir. 2010), cert. denied 

564 U.S. 1021 (2011); Almenas, 553 F.3d at 33. Tavares 

nevertheless points out that these prior opinions did not consider 

the impact of Johnson v. United States (Johnson I), 559 U.S. 133 

(2010), which held that the term "physical force" under the force 

clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. 

§ 924(e)(2)(B)(i), requires "violent force," meaning "force 

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

Johnson I, 559 U.S. at 140. That holding, the parties do not 

dispute, also applies to the identical phrase at issue here under 

§ 4B1.2 of the Guidelines. See, e.g., United States v. CastroVazquez, 802 F.3d 28, 37–38 (1st Cir. 2015); United States v. 

Carrigan, 724 F.3d 39, 50 (1st Cir. 2013). Because subsection (1) 

requires "physical force or violence," reasons Tavares, we should 

hold that it does not necessarily require "violent force," and 

hence the offense described in subsection (1) fails to qualify as 

a crime of violence under Johnson I. 

Although we are generally bound by prior panel decisions 

on point, we may depart from circuit precedent if the prior holding 

is "contradicted by controlling authority, 

subsequently announced (say, a decision of the 

authoring court en banc, a Supreme Court 

opinion directly on point, or a legislative 

overruling)," or in "those relatively rare 

instances in which authority that postdates 

the original decision, although not directly 

controlling, nevertheless offers a sound 

reason for believing that the former panel, in 
- 21 - 

light of fresh developments, would change its 

collective mind." 

United States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011) (citations 

omitted). It is also true that we decided Almenas before Johnson 

I construed "physical force" as used in the ACCA to require 

"violent force." Almenas, however, did not rest on the assumption 

that physical force meant something other than violent force. To 

the contrary, in addressing the defendant's argument that some 

conduct that fell under both subsections of the Resisting Arrest 

statute was non-violent, we described that conduct (stiffening 

one's arm to avoid being handcuffed) as something that could not 

be characterized as "non-violent." Almenas, 553 F.3d at 35. No 

controlling authority issued after Almenas and Weekes contradicts 

our holdings in those cases. So Tavares must argue that postdated authority that is not directly controlling "nevertheless 

offers a sound reason" for concluding that we would have reached 

a different result had we known what we know now. Pires, 642 F.3d 

at 9. 

Tavares makes a plausible point that one might read 

"physical force or violence" in the Resisting Arrest statute as 

suggesting that "physical force" means something other than 

violence. That point, though, was as valid when Almenas was 

decided as it is today. Moreover, Johnson I itself construed the 

term "physical force" as used in the ACCA to mean "violent force." 

We also see nothing in the Massachusetts case law to which Tavares 
- 22 - 

points indicating that the element of "physical force or violence" 

is satisfied by a degree of physical force that would not equal or 

exceed the ACCA's "physical force." In Commonwealth v. Katykhin, 

794 N.E.2d 1291 (Mass. App. Ct. 2003), the defendant refused to 

get into a police cruiser, stood "rigid, upright, almost like a 

plank of wood," and "began to pull away [from the police officer], 

starting a tug of war." Id. at 1292. In Commonwealth v. Joyce, 

998 N.E.2d 1038 (Mass. App. Ct. 2013), the defendant was "shouting 

and struggling to pull his arms forward to maintain a fighting 

stance with [a third party]" while an officer placed him under 

arrest. Id. at 1044. He then refused to move his feet as two 

officers tried to bring him to the police cruiser "pushing 

backwards and straining to turn so that he could shout at 

bystanders." Id. at 1041, 1044. In Commonwealth v. Maylott, 841 

N.E.2d 717 (Mass. App. Ct. 2006), the defendant was "moving his 

arms, flailing as he was yelling and screaming" when the officers 

tried to handcuff him. Id. at 718. When one officer took hold of 

his right hand, he stiffened his arm and refused to turn around or 

put his hands behind his back. Id. 

It certainly seems reasonable to view the foregoing 

conduct as involving in each instance a use or threatened use of 

force sufficient to cause pain or injury so as to qualify under 

the force clause as construed in Johnson I. Whether we would so 

conclude in the absence of binding precedent, we need not decide. 
- 23 - 

Rather, we need only decide--and do decide--that this appeal does 

not present one of those rare occasions in which we might set aside 

controlling circuit precedent. 

That leaves only the question whether the government 

should have the opportunity on remand to supplement the record 

with Shepard documents, assuming such documents exist and would 

pin Tavares's conviction firmly under Massachusetts Resisting 

Arrest subsection (1), rather than (2). Tavares does not argue 

that the government should not have such an opportunity. Here, 

importantly, the record was sufficient to sustain the government's 

position at the time of sentencing without any need to present 

Shepard documents, and we remand for reconsideration of that 

sentence only because the controlling law on the residual clause 

thereafter changed. Under such circumstances, supplementation of 

the record for sentencing on remand is appropriate. 

2. ABDW

Chapter 265, § 15A(b) of Massachusetts General Laws sets 

forth the maximum term of incarceration and fine that may be 

imposed on a person "[w]ho[] commits an assault and battery upon 

another by means of a dangerous weapon." Mass. Gen. Laws ch. 265, 

§ 15A(b).7 The substantive definition of ABDW, in turn, is supplied 

by case law applying the crime's common law definition. See 

 

7 Tavares was convicted of ABDW in 2009. The relevant portion of 

the statutory language has not changed since then. 
- 24 - 

Commonwealth v. Porro, 939 N.E.2d 1157, 1162 (Mass. 2010); 

Commonwealth v. Burno, 487 N.E.2d 1366, 1368-69 (Mass. 1986). In 

Burno, the Supreme Judicial Court of Massachusetts ("SJC") applied 

the common law definition of simple assault and battery to describe 

"two separate aspects to the crime" of ABDW. 487 N.E.2d at 1368. 

These "separate aspects" both require the use of a dangerous weapon 

and are described as follows: 

[(1)] "the intentional and unjustified use of 

force upon the person of another, 

however slight," or 

[(2)] the intentional commission of a wanton 

or reckless act . . . causing physical 

or bodily injury to another. 

Id. at 1368–69 (citations omitted). For ease of reference given 

the numerous sections and subsections described in the opinion, we 

refer to these two forms of the offense as Massachusetts ABDW 

sections (1) and (2). 

Tavares makes two principal arguments in challenging the 

district court's classification of this offense as a "crime of 

violence" under § 4B1.2(a)(1) of the Guidelines. Relying on this 

court's opinion in United States v. Fish, 758 F.3d 1 (1st Cir. 

2014), he argues that ABDW under Massachusetts law is categorically 

not a "crime of violence" under § 4B1.2(a)(1) because (1) 

Massachusetts ABDW section (1)--"the intentional and unjustified 

use of force upon the person of another, however slight"--may be 

committed without employing the necessary "violent force" required 
- 25 - 

by Johnson I, and (2) Massachusetts ABDW section (2)--"the 

intentional commission of a wanton or reckless act . . . causing 

physical or bodily injury to another"--may be committed with a 

reckless, as opposed to an intentional, mens rea. Tavares also 

argues that, if he is correct that even one of these versions of 

ABDW does not qualify as a crime of violence, he must then prevail 

because Massachusetts ABDW is not elementally divisible into 

multiple offenses and thus is not subject to the modified 

categorical approach aimed at determining which version of the 

offense was the version for which he was previously convicted. 

See generally Descamps, 133 S. Ct. at 2281-82; United States v. 

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

cert. docketed, No. 16-0237 (Aug. 24, 2016); accord Mathis v. 

United States, 136 S. Ct. 2243, 2248–49 (2016). 

In Fish, we did indeed observe that the government, "with 

good reason," declined to argue that Massachusetts ABDW section 

(1) qualifies as a crime of violence under the force clause of 18 

U.S.C. § 16(a), which is substantially identical to the force 

clause here, U.S.S.G. § 4B1.2(a)(1). Fish, 758 F.3d at 9. The 

reason, we observed, was that "ABDW may be accomplished by a mere 

'touching, however slight,'" id. (quoting United States v. Hart, 

674 F.3d 33, 42 (1st Cir. 2012)), and therefore did not involve 

the use of physical force, id. 
- 26 - 

Nevertheless, in United States v. Whindleton, 797 F.3d 

105 (1st Cir. 2015), cert. dismissed, No. 15-9653, 2016 WL 3199031 

(Aug. 19, 2016), and cert. denied, No. 16-5101, 2016 WL 3633306 

(Oct. 3, 2016), the government advanced the argument it eschewed 

in Fish, and we turned our focus from the ACCA's "use . . . of 

physical force" to its "attempted . . . or threatened use of 

physical force" criterion, finding that a mere touching with a 

dangerous weapon constituted an attempted or threatened use of 

physical force. Id. at 113–16; see also United States v. Hudson, 

823 F.3d 11, 16 (1st Cir. 2016) (reaffirming Whindleton). We have 

extended the holding in Whindleton from the force clause of the 

ACCA to the force clause of U.S.S.G. § 4B1.2(a). See United States 

v. Fields, 823 F.3d 20, 33–35 (1st Cir. 2016). Although Whindleton 

was convicted of assault with a dangerous weapon ("ADW"), Mass. 

Gen. Laws ch. 265, § 15B(b), rather than ABDW like Tavares, ADW is 

a "lesser included offense" of ABDW section (1). See Porro, 939 

N.E.2d at 1165–66; Commonwealth v. Appleby, 402 N.E.2d 1051, 1059 

(Mass. 1980). Therefore, no more "force"--whether attempted, 

threatened, or actually used--could be required for ADW than ABDW 

section (1). See United States v. Maxwell, 823 F.3d 1057, 1061 

(7th Cir. 2016) (relying on level of force required by lesserincluded offense to conclude that a prior state court conviction 

qualified under force clause of § 4B1.2(a)), cert. denied, No. 16-

6072, 2016 WL 5357418 (Oct. 31, 2016). Thus, Whindleton's holding 
- 27 - 

means that ABDW section (1) qualifies as a crime of violence under 

the ACCA. Whindleton, 797 F.3d at 113-16. No decision since 

Whindleton calls that conclusion into question or suggests any 

reason why that conclusion should not apply equally to U.S.S.G. 

§ 4B1.2(a)(1). For this reason, and tracking our holding in 

Whindleton rather than the government's concession in Fish, we 

hold that Massachusetts ABDW section (1)--"the intentional and 

unjustified use of force upon the person of another, however 

slight"--constitutes a crime of violence under § 4B1.2(a)(1) of 

the Guidelines. See Fields, 823 F.3d at 35 n.12 (not following as 

dicta Fish's observation about Massachusetts ABDW section (1)). 

That holding leaves two questions: Is Massachusetts 

ABDW section (2)--"the intentional commission of a wanton or 

reckless act . . . causing physical or bodily injury to another" 

--also a crime of violence? If not, is Massachusetts' definition 

of ABDW divisible? We address the divisibility question first. 

Ultimately, we conclude that the statute is divisible and remand 

the case to the district court to determine whether Tavares was 

convicted under Massachusetts ABDW section (1) without deciding 

whether Massachusetts ABDW section (2) is also a crime of violence. 

In Fish, this court posited that if Massachusetts had 

set forth the elements of each "aspect" of ABDW by statute, rather 

than in case law, it would read as follows: 
- 28 - 

Assault and Battery with a Dangerous Weapon 

is: 

(1) The intentional and unjustified touching 

of another by use of a dangerous weapon, 

or, 

(2) The intentional commission of a wanton or 

reckless act [with a dangerous weapon] 

causing more than transient or trifling 

injury to another. 

Fish, 758 F.3d at 15. This offense reads as a divisible statute, 

one which "list[s] elements in the alternative, and thereby 

define[s] multiple crimes." Mathis, 136 S. Ct. at 2249. One set 

of elements requires a heightened mens rea--intentional conduct-- 

but only slight contact. Burno, 487 N.E.2d at 1368–69. The other 

set requires merely reckless behavior but an injury that 

"interfered with the health or comfort of the victim." Id. at 

1370. Which set of elements a jury would have to find in order to 

convict would depend upon which form of ABDW the government 

advanced at trial. 

Tavares, however, points us to decisions from the 

state's intermediate appellate court--the Appeals Court of 

Massachusetts--which hold that jurors need not be unanimous as to 

the form of assault and battery of which it convicts a defendant. 

See Commonwealth v. Mistretta, 995 N.E.2d 814, 815–16 (Mass. App. 

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

also Commonwealth v. Frith, No. 15-P-0364, 2016 WL 3659906, at *2 
- 29 - 

(Mass. App. Ct. July 8, 2016) (unpublished opinion). In Mistretta, 

the court found that the two forms of assault and battery "are 

closely related subcategories of the same crime," and thus 

"[s]pecific unanimity is not required, because they are not 

'separate, distinct, and essentially unrelated ways in which the 

same crime can be committed.'" 995 N.E.2d at 815–16 (quoting 

Commonwealth v. Santos, 797 N.E.2d 1191, 1197 (Mass. 2003), 

overruled on other grounds by Commonwealth v. Anderson, 963 N.E.2d 

704, 718 (Mass. 2012)). Based on Mistretta, the 2016 version of 

the Criminal Model Jury Instructions for Assault and Battery, while 

laying out the elements for both "Intentional Assault and Battery" 

and "Reckless Assault and Battery," instruct that "[n]o verdict 

slip or specific unanimity instruction [is] required where both 

intentional and reckless assault and battery are alleged." 

Massachusetts Criminal Model Jury Instructions for Use in the 

District Court, Instruction 6.140, at 6 n.1 (June 2016), available 

at http://www.mass.gov/courts/docs/courts-andjudges/courts/district-court/jury-instructions-criminal/6000-

9999/6140-assault-and-battery.pdf.8

 

8 We note, however, that the model jury instructions for ABDW still 

state that "[i]f both the intentional and reckless theories of 

culpability are submitted to the jury, the judge must provide the 

jury with a verdict slip to indicate the theory or theories on 

which the jury bases its verdict and is required, on request, to 

instruct the jurors that they must agree unanimously on the theory 

of culpability." Massachusetts Criminal Model Jury Instructions 

for Use in the District Court, Instruction 6.300, at 6 (2009 ed.), 
- 30 - 

We are not bound by a decision of a state intermediate 

appellate court, though such a decision "generally constitutes a 

reliable piece of evidence" concerning a state-law question. 

Noviello v. City of Boston, 398 F.3d 76, 91 (1st Cir. 2005). 

Where, as here, the state's highest court--the SJC--"has not spoken 

directly to an issue, [we] must make an informed prophecy as to 

the state court's likely stance." Andrew Robinson Int'l, Inc. v. 

Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008). 

We first consider whether Mistretta's holding is 

relevant to the divisibility inquiry before deciding whether it 

accurately reflects Massachusetts state law. The precise question 

before us is whether the differing items involved in committing 

each form of the offense--intentional versus reckless mens rea; 

slight contact versus bodily injury--"merely specif[y] diverse 

means of satisfying a single element of a single crime," or 

constitute "elements in the alternative, . . . thereby defin[ing] 

multiple crimes." Mathis, 136 S. Ct. at 2249. Whether 

Massachusetts requires that jurors unanimously agree on the form 

of ABDW under which they are convicting a defendant informs this 

analysis because the Supreme Court and this court have repeatedly 

stated that jurors must unanimously find that the government proved 

 

available at http://www.mass.gov/courts/docs/courts-andjudges/courts/district-court/jury-instructions-criminal/6000-

9999/6300-assault-and-battery-by-means-of-a-dangerousweapon.pdf. 
- 31 - 

all "elements" of an offense beyond a reasonable doubt to convict 

a defendant. See id. at 2248 ("[Elements] are what the jury must 

find beyond a reasonable doubt to convict the defendant . . . . 

Facts, by contrast, are mere real-world things--extraneous to the 

crime's legal requirements."); Descamps, 133 S. Ct. at 2288 ("The 

Sixth Amendment contemplates that a jury . . . will find [] facts 

[about the defendant's conduct] unanimously and beyond a 

reasonable doubt. And the only facts the court can be sure the 

jury so found are those constituting elements of the offense . . 

. ."); id. at 2298 (Alito, J., dissenting) ("The feature that 

distinguishes elements and means is the need for juror agreement 

. . . ."); Richardson v. United States, 526 U.S. 813, 817 (1999); 

Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality opinion); 

United States v. LaPlante, 714 F.3d 641, 647 (1st Cir. 2013). 

State law as to what facts a jury must agree upon 

unanimously plays a crucial role in distinguishing between 

elements and mere factual means.9 See Mathis, 136 S. Ct. at 2250 

("[The locations listed in the Iowa burglary statute] lay out 

alternative ways of satisfying a single locational element, as the 

Iowa Supreme Court has held: Each of the terms serves as an 

'alternative method of committing [the] single crime' of burglary, 

 

9 Before Mathis, the circuits were split on this question. See 

Almanza-Arenas v. Lynch, 815 F.3d 469, 479–81 (9th Cir. 2016) (en 

banc) (recognizing circuit split). 
- 32 - 

so that a jury need not agree on which of the locations was actually 

involved." (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa 

1981))). Thus, if Mistretta accurately reflects Massachusetts 

state law, it means that Massachusetts ABDW is indivisible. 

We must therefore predict how the SJC would decide 

whether a specific unanimity instruction is required in an ABDW 

prosecution, using Mistretta as a reliable piece of evidence. 

Mistretta applied the standard set forth by the SJC in Santos for 

determining when jury unanimity is required. In Santos, the 

defendant claimed that the trial judge had erred by refusing to 

give a specific unanimity instruction with respect to the 

indictment charging armed robbery. 797 N.E.2d at 1194. He argued 

that whether he had used force on the victim or had merely placed 

the victim in fear constituted different "theories" of the assault 

element of armed robbery, thus requiring specific unanimity. Id. 

at 1196. The SJC disagreed and held that a specific unanimity 

instruction was not required. Id. at 1198. 

 Santos reached this holding on the basis of three 

intermediate conclusions. First, a specific unanimity instruction 

is only required when there is more than one "theory" of guilt for 

a charged crime, and the alternative "theories" are "substantively 

distinct or dissimilar." Santos, 797 N.E.2d at 1197–98. Second, 

two "alternate method[s] by which a single element may be 

established" that are "closely related" are not substantively 
- 33 - 

distinct or dissimilar. Id. Third, "actual force" and "threat of 

force" are closely related factual means of satisfying a single 

element. Id. at 1198. The second and third conclusions indicate 

that actual force and threat of force are not substantively 

distinct or dissimilar. Thus, by the first conclusion, a specific 

unanimity instruction was not required. 

Dictum in the Santos opinion clarifies that, in 

determining whether two forms of an offense are "substantively 

distinct or dissimilar" theories or "closely related" methods of 

proving the same elements, courts should consider the mens rea 

requirements of the two forms of the offense. The SJC offered 

manslaughter as an example of a crime that may be proved by two 

different theories that are "substantively distinct or 

dissimilar"--namely, voluntary manslaughter and involuntary 

manslaughter. Id. at 1197. Under Massachusetts law, "voluntary 

manslaughter is an intentional killing, which is mitigated by 

extenuating circumstances,'" Commonwealth v. Squailia, 706 N.E.2d 

636, 642 (Mass. 1999) (emphasis omitted), while "[i]nvoluntary 

manslaughter is an unintentional, unlawful killing caused by 

wanton or reckless conduct," Commonwealth v. Earle, 937 N.E.2d 42, 

48 (Mass. 2010). The Santos opinion concluded that voluntary and 

involuntary manslaughter were not closely related because of their 

different mens rea requirements. 797 N.E.2d at 1197 ("[V]oluntary 

and involuntary manslaughter are mutually exclusive--one cannot 
- 34 - 

kill both intentionally and unintentionally at the same time."). 

This conclusion could apply equally to Massachusetts ABDW section 

(1) and Massachusetts ABDW section (2), which, like the two forms 

of manslaughter, differ in that one requires intent while the other 

requires recklessness. Thus, this dictum from Santos indicates 

that Mistretta was wrongly decided. 

Mistretta, however, also drew support from a later SJC 

opinion, Porro, 939 N.E.2d 1157, which complicates the analysis. 

Porro addressed the relationship between two different types of 

assault: attempted battery assault and threatened battery 

assault. The court held that "[a]n assault under a theory of 

attempted battery . . . has elements different from an assault 

under a theory of threatened battery." Id. at 1163. The elements 

of attempted battery assault are that "the defendant 'intended to 

commit a battery, took some overt step toward accomplishing that 

intended battery, and came reasonably close to doing so.'" Id. 

(citation omitted). The elements of threatened battery assault 

are "that the defendant engaged in conduct that a reasonable person 

would recognize to be threatening, that the defendant intended to 

place the victim in fear of an imminent battery, and that the 

victim perceived the threat." Id. 

Although these two forms of assault have different 

elements, Porro contains a statement (itself also dictum) that a 

specific unanimity instruction is not required in prosecutions for 
- 35 - 

assault. Id. at 1165–66. This statement, if adopted, would extend 

Santos's holding as to the assault element of robbery to the 

substantive crime of assault: 

Because attempted battery and threatened 

battery "are closely related," we do not 

require that a jury be unanimous as to which 

theory of assault forms the basis for their 

verdict; a jury may find a defendant guilty of 

assault if some jurors find the defendant 

committed an attempted battery (because they 

are convinced the defendant intended to strike 

the victim and missed) and the remainder find 

that he committed a threatened battery 

(because they are convinced that the defendant 

intended to frighten the victim by threatening 

an assault). 

Porro, 939 N.E.2d at 1165 (quoting Santos, 797 N.E.2d at 1197); 

see also Commonwealth v. Arias, 939 N.E.2d 1169, 1173–74, 1173 n.2 

(Mass. App. Ct. 2010). 

Porro's dictum is in tension with United States Supreme 

Court precedent. Under a literal reading, Porro states that the 

two forms of assault have different elements and that a jury may 

convict a defendant of assault without agreeing unanimously about 

which elements of the crime were satisfied. Such a holding would 

contradict the definition of "element" as it is used by the Supreme 

Court. See, e.g., Mathis, 136 S. Ct. at 2250. While we could 

reject the SJC's conclusion about the specific unanimity 

requirement for assault as dictum, we note that it has been 

incorporated into the model jury instructions for assault. See 

Massachusetts Criminal Model Jury Instructions for Use in the 
- 36 - 

District Court, Instruction 6.120, at 4 n.9 (2009 ed.), available 

at http://www.mass.gov/courts/docs/courts-andjudges/courts/district-court/jury-instructions-criminal/6000-

9999/6120-assault.pdf. Thus, we conclude that the Porro opinion 

uses the word "element" differently than the Supreme Court. Under 

the Supreme Court's usage, Porro's dictum that a specific unanimity 

instruction is not required in prosecutions for assault implies 

that the two forms of assault are alternative means of proving the 

same elements.10

Porro is also in tension with the dictum from Santos 

from which we concluded that Mistretta was wrongly decided. Like 

the example of voluntary and involuntary manslaughter, the two 

forms of assault considered in Porro have different mens rea 

requirements. Attempted battery requires an intent to commit a 

battery, while threatened battery requires an intent to place the 

victim in fear of an imminent battery. Porro, 939 N.E.2d at 1163. 

These two mens rea requirements are more closely related than 

intent and recklessness, however. While "one cannot kill both 

intentionally and unintentionally at the same time," Santos, 797 

N.E.2d at 1197, one could easily intend both to commit a battery 

 

10 This interpretation of Porro is consistent with the central 

holding of that opinion, which is that both forms of assault are 

generally lesser included offenses of assault and battery, even 

though the "elements" of assault and battery and threatened battery 

do not overlap in the way that is usually required. See Porro, 

939 N.E.2d at 1165. 
- 37 - 

and to place a victim in fear of an imminent battery. Therefore, 

Porro does not alter the conclusion we reached above. We predict 

that the SJC would not follow Mistretta. 

This conclusion is compatible with the language the 

United States Supreme Court has used to distinguish elements from 

mere facts. Whether one commits ABDW with an intentional or 

reckless mens rea carries with it an important legal consequence: 

it changes the required result of the battery needed for a 

conviction. If the actor intentionally uses force upon another, 

no injury must be proven, but if the actor intends only to commit 

conduct that is reckless, physical or bodily injury must be proven. 

Burno, 487 N.E.2d at 1368–69. The differences in the two forms of 

Massachusetts ABDW--intentional versus reckless mens rea, slight 

touching versus bodily injury--are substantively distinct and 

therefore constitute alternative elements, rather than different 

factual means of establishing a single set of elements. See 

Mathis, 136 S Ct. at 2248 ("Facts . . . . are 'circumstance[s]' or 

'event[s]' having no 'legal effect [or] consequence.'" (quoting 

Black's Law Dictionary 709 (10th ed. 2014))). Accordingly, we 

find that the crime of Massachusetts ABDW is divisible. 

Of course, given our finding that Massachusetts ABDW 

section (1) is a crime of violence, our conclusion that ABDW is 

divisible only makes a difference if Massachusetts ABDW 

section (2)--the reckless version of ABDW--is not a crime of 
- 38 - 

violence. Prior to the Supreme Court's recent decision in Voisine 

v. United States, 136 S. Ct. 2272 (2016), precedent directly 

dictated that the reckless, unintentional causing of injury, such 

as unintentionally hitting a pedestrian while driving recklessly, 

was not a crime of violence under 18 U.S.C. § 16(b).11 See Fish, 

758 F.3d at 10–14. Our holding in Fish was based on the reasoning 

of Leocal v. Ashcroft, 543 U.S. 1 (2004), which interpreted the 

phrase "use . . . physical force against the person or property of 

another" to require "active employment." 543 U.S. at 9; see also 

Fish, 758 F.3d at 9-10. Such reasoning would seem to apply equally 

to the pertinent Guidelines definition of a crime of violence at 

issue here. Thus, Fish would dictate that a conviction for the 

reckless version of ABDW is not a crime of violence under U.S.S.G. 

§ 4B1.2(a)(1). Voisine, though, calls into question the continuing 

validity of Fish, as well as the similar and analogous holdings of 

at least ten other circuits. See Fish, 758 F.3d at 9-10, 10 n.4 

(listing cases). 

In Voisine, the Supreme Court held that 18 U.S.C. 

§ 922(g)(9)'s prohibition against gun possession for persons 

convicted "of a misdemeanor crime of violence" extended to persons 

 

11 Section 16(b) provides that "any . . . offense that is a felony 

and that, by its nature, involves a substantial risk that physical 

force against the person or property of another may be used in the 

course of committing the offense" is a crime of violence. 18 

U.S.C. § 16(b). 
- 39 - 

convicted of such an offense even under a reckless theory of mens 

rea. 136 S. Ct. at 2282. It reasoned that the word "use" in 

18 U.S.C. § 921(a)(33)(A), which defines the term "misdemeanor 

crime of domestic violence" as including a misdemeanor that "has, 

as an element, the use or attempted use of physical force," 

encompasses "an act of force carried out in conscious disregard of 

its substantial risk of causing harm," i.e., reckless conduct. 

136 S. Ct. at 2279. The government contends that this reasoning 

applies equally in interpreting the word "use" in § 4B1.2(a)(1) of 

the Guidelines. 

That this contention is correct, however, is not 

entirely clear. As Tavares points out, Voisine itself specifically 

left open the question whether reckless conduct is encompassed in 

the similar statutory language found in 18 U.S.C. § 16. See 

Voisine, 136 S. Ct. at 2280 n.4. And in reaching its conclusion, 

the Court also relied upon the history and purpose of § 922(g)(9), 

explaining that a contrary finding "would have undermined 

Congress's aim," id. at 2281, to prohibit domestic abusers from 

possessing firearms in light of the fact that "a significant 

majority of jurisdictions . . . defined such misdemeanor offenses 

to include the reckless infliction of bodily harm," id. at 2280. 

Indeed, Voisine recognizes in a footnote that "[c]ourts have 

sometimes given [§ 921(a)(33)(A) and § 16] divergent readings in 

light of differences in their contexts and purposes, and we do not 
- 40 - 

foreclose that possibility with respect to their required mental 

states." Id. at 2280 n.4. Further muddying the waters is the 

different statutory language used in each statute: § 921(a)(33)(A) 

refers only to the "use of physical force," 18 U.S.C. 

§ 921(a)(33)(A)(ii), whereas § 4B1.2(a)(1) of the Guidelines 

refers to the "use of physical force against the person of 

another," U.S.S.G. § 4B1.2(a)(1) (emphasis added). See Leocal, 

543 U.S. at 9 ("Whether or not the word 'use' alone supplies a 

mens rea element, the parties' primary focus on that word is too 

narrow . . . . The critical aspect of § 16(a) [in determining 

that it excludes negligent or accidental conduct] is that a crime 

of violence is one involving the 'use . . . of physical force 

against the person or property of another.'"). But see Voisine, 

136 S. Ct. at 2279 (stating that the quoted reasoning from Leocal 

"fully accords with our analysis here"). 

 Even a careful reader of this opinion may at this point 

feel lost. We began with a seemingly simple question. Has Tavares 

been convicted of a crime of violence? Trying to answer that 

question then led us down several rabbit holes: Is Massachusetts 

ABDW a divisible offense under Descamps and Mathis? How does 

Massachusetts law define the relationship between the two common 

forms of the offense? Does Voisine upend the circuits' wide 

consensus that recklessly causing injury is different than using 

force against a person? 
- 41 - 

 In a sensible world, Congress and/or the Sentencing 

Commission would have made a list of state and federal laws deemed 

to be crimes of violence that warranted the desired penalties and 

sentencing enhancements. At its margins, such a list might be 

over- or under-broad. It would, though, be straightforward. 

 Instead of using a simple list, the drafters adopted 

abstract descriptions of the crimes that would appear on such a 

list, employing terms such as "physical force," "use," "injury," 

and so on. The result is a Rube Goldberg jurisprudence of 

abstractions piled on top of one another in a manner that renders 

doubtful anyone's confidence in predicting what will pop out at 

the end. Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 483–84 (9th 

Cir. 2015) (en banc) (Owens, J., concurring). 

What pops out matters a great deal. In Fish, one could 

not know whether certain conduct was lawful or criminal unless one 

knew whether a prior crime was a crime of violence. Here, Tavares 

could not know--within years--the guidance applicable to his 

sentencing. Nor could one get confident answers by asking a 

lawyer--or even a judge. So what do we do here? For three reasons, 

we stop short of finally deciding now whether a conviction under 

the reckless version of ABDW qualifies as a crime of violence. 

First, the Supreme Court has granted certiorari in 

Beckles v. United States, 616 F. App'x 415 (11th Cir. 2015), cert. 

granted, 136 S. Ct. 2510 (2016). Although the Eleventh Circuit 
- 42 - 

decided that case on the narrow ground that Johnson II did not 

apply to a career offender enhancement based on the Guidelines 

commentary to § 4B1.2, id. at 415–16, the petition for certiorari 

raised the much broader question as to whether Johnson II applies 

to the residual clause of § 4B1.2(a)(2). See Petition for Writ of 

Certiorari at i, Beckles v. United States, No. 15-8544 (U.S. Mar. 

9, 2016), 2016 WL 3476563. The Supreme Court granted the petition 

in full, 136 S. Ct. 2510, 2510, and thus may well answer this 

broader question. If the Court decides that Johnson II does not 

so apply, then the district court may consider if it can once again 

rely on the residual clause or if the government has forfeited any 

reliance on that clause by conceding the issue on appeal. 

Second, even if Beckles does not put the residual clause 

back in play in this case, it will only be necessary to decide 

whether the reckless version of ABDW is a crime of violence if 

there are no Shepard documents that make clear that Tavares's ABDW 

conviction was for the intentional version of the offense. As 

Tavares noted in his supplemental brief, the Massachusetts 

district court criminal model jury instructions, at least prior to 

this year, instructed Massachusetts courts to use a jury verdict 

form for ABDW charges that would plainly reveal which version of 

the offense was the offense of conviction.12 Common sense suggests, 

 

12 They may still do so for ABDW, though not for assault and 

battery. See note 8, supra. 
- 43 - 

too, that by far the most common version of the offense charged is 

the intentional version. In sum, whether the reckless version of 

ABDW is also a crime of violence will likely not make any 

difference in this case. 

Third, in the event that it does make a difference, the 

parties will be able to brief the issue and the district court--

for the first time--will be able to consider it. We, in turn, 

will then have the benefit of a fully developed record, the 

district court's views, and likely more precedent to consider as 

we and other courts encounter the "recklessness" question in other 

cases in which the answer does make a difference. We therefore 

remand to the district court to allow the government the 

opportunity to put forth Shepard documents that clarify whether 

Tavares's ABDW conviction was for the intentional or reckless 

version of the offense. 

CONCLUSION 

We affirm Tavares's conviction, but remand for 

reconsideration of his sentence consistent with this opinion. If 

the district court concludes that either the Resisting Arrest 

conviction or the ABDW conviction did not qualify under the career 

offender guideline, it should vacate and resentence. Otherwise, 

it should vacate and then re-enter the present sentence.