Redefining "Crime of Violence" in the Wake of United States v. Johnson

Here at Brad Bailey Law, we have been following, and blogging about, United States v. Johnson, a case recently decided by the Supreme Court of the United States ("SCOTUS") which has significant implications for sentencing in federal criminal cases across the nation, especially here in Massachusetts. In federal court, a defendant who has been convicted of 2 or more prior "crimes of violence" can face massive sentencing enhancements upon subsequent conviction. The term "crime of violence" (or "violent felony") is defined in various places throughout both the U.S. Code as well as in the U.S. Sentencing Guidelines. In Johnson, SCOTUS held that one of the definitions of "crime of violence," namely the so-called "residual clause," in the Armed Career Criminal Act ("ACCA") is unconstitutionally vague. Although the holding in Johnson was limited to the residual clause in the ACCA, the assumption of various Courts of Appeals throughout the country is the holding in Johnson applies to every other statute or regulation where the residual clause is used (be it in the U.S. Sentencing Guidelines or in other parts of the U.S. Code). This is why Johnson has such enormous implications in the realm of federal sentencing. These implications are beginning to percolate throughout the country. In fact, right now there are 2 cases pending before the 1st Circuit Court of Appeals here in New England (U.S. v. Ernest Fields, 14-2137 & U.S. v. Todd Faust, 14-2292) relating to how convictions under Massachusetts' Assault and Battery with a Dangerous Weapon ("ABDW") and Assault and Battery on a Peace Officer ("ABPO") statutes must be handled in light of Johnson.

In essence, the residual clause states that where the prior conviction involves conduct that presents a serious potential risk of physical injury to another, that conviction constitutes a crime of violence. The 1st Circuit has previously held that Massachusetts' ABDW and ABPO statutes do fall under the residual clause. Because the residual clause has since been ruled unconstitutional by SCOTUS, the question being decided in the 1st Circuit is whether these statutes fit within the other definition of a "crime of violence."

Under the U.S. Sentencing Guidelines, a "crime of violence" is defined as: either a crime that (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, extortion, or involves use of explosives. It is fair to assume we can all agree that neither ABDW nor ABPO falls under definition (2) of a crime of violence. As to definition (1), however, it seems that ABDW and ABPO inherently implicate the "threatened use of physical force against the person of another." One can easily intuit that assault and battery with a dangerous weapon necessarily involves the "use of physical force," so too, "beating up" a police officer. Seems simple, right? Actually, not so!

Nothing in the law, especially the U.S. Sentencing Guidelines, is ever that simple. For example in U.S. v. Taylor, SCOTUS requires courts to look at the statutory definition of a crime, as opposed to the facts which underlie a conviction when determining whether or not a conviction satisfies the definition of crime of violence. This is known as a "categorical approach;" either the statute itself has an element of the use or threatened use of physical force, or it doesn't. But then it gets more complicated. Sometimes a statute, much like Massachusetts' statutes for ABDW and ABPO, don't define what the elements actually are. The question then arises: what do we look to when determining what, exactly, the defendant was convicted of? Can we use police reports? Are we just limited to trial testimony or court transcripts? SCOTUS in U.S. v. Shepard tried to work this out, but there are still some gaps and some confusion about the universe of materials courts can look to.

With regard to ABDW and ABPO, Massachusetts' Supreme Judicial Court has defined an "assault and battery" in 2 ways: (1) "intentional battery" and (2) "reckless battery." Intentional battery occurs when there is the intentional and unjustified use of force upon the person of another, however slight. Reckless battery, on the other hand, occurs when an individual engages in reckless conduct that results in a touching producing physical injury to another person. What separates an ABDW and ABPO from simple A&B is that the A&B was done with a dangerous weapon on the one hand, and the A&B was done to a peace officer on the other. Oddly, there is an argument that under either definition of assault and battery the "threatened use of physical force against the person of another" is not required. For example, one could intentionally touch a person only slightly with a baseball bat and could, in theory, satisfy the "intentional battery" kind of ABDW. Similarly, one could be swinging a bat, not intending to hit someone, but doing so causing bodily injury, and be guilty of the "reckless battery" form of ABDW. Neither example, however, would satisfy the definition in question of a crime of violence, because neither involve the intentional use or threatened use of physical force.

It will be interesting to see how the 1st Circuit handles these cases. The defendants in each case have argued that, regardless of the theory of A&B the defendant was convicted under (i.e. intentional battery or reckless battery), neither ABDW nor ABPO can qualify as a violent felony in light of the way the Massachusetts' SJC has defined A&B. It would be my guess, however, that the 1st Circuit will determine that ABDW and ABPO might constitute crimes of violence, but only if the defendant was convicted under a theory of "intentional battery." To prove that, the 1st Circuit will likely require the government to produce a transcript from either the plea colloquy (if it was a guilty plea) or the trial to establish which theory supported the conviction.

Massachusetts's criminal statutes are notorious for containing undefined terms and/or generally confusing language. Much of these statutes have been gap-filled by judicial interpretation and the common law, which only adds to the confusion, as seen above. It would come to me as no small surprise if we were to see many cases like Fields and Faust begin to work their way through the 1st Circuit.

If you or someone you know has been sentenced in federal court as a career offender or as an armed career criminal based on prior convictions in Massachusetts (or elsewhere), I strongly advise you to immediately consult with an experienced federal criminal defense attorney like me to help draft, file and argue the appropriate petition for relief.