Following Assistant Federal Defender Syrie Fried's win in US v. Holloway, the probation office will no longer score all Massachusetts A & B's a "crime of violence" predicates for Armed Career Criminal OR for Career Offender purposes. This is sure make a significant reduction in career offender sentences (usually starting at 151+ or 262+ months).
US Probation has released the following communique:
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Subject A&B - Holloway DecisionOn 1/21/11, the 1st Circuit Court of Appeals issued its ruling in U.S. v. Holloway, which raised the issue of whether the boilerplate "did assault and beat" language was sufficient to categorize a conviction for Assault and Battery as a violent felony for ACCA purposes. A long line of cases,starting with U.S. v. Mangos (1998), had held that this language was sufficent to identify the offense as "harmful battery," as opposed to "offensive" or "reckless" battery. In light of the Supreme Court's
decision in Johnson v. U.S. (2010)(dealing with a FL battery statute), the 1st Circuit revisited its prior holdings.
In sum, the Court has now ruled in Holloway that the boilerplate "did assault and beat" language is not sufficient to categorize the conviction as a violent felony, and that Shepard approved evidence (i.e., indictment, plea colloquy, jury instructions) would need to be submitted in order to establish that it was "harmful battery" (the only one of the three types of battery covered by the MA statute that the 1st Circuit has determined to be a violent felony). This decision does not specifically address whether A&B as currently charged meets the definition of "crime of violence" in USSG 4B1.2, though the Court has held that the violent felony and crime of violence definitions are nearly identical in meaning and that because of
this, "decisions construing one term inform the construction of the other."
In line with this ruling, the Probation Office will no longer consider simple A&B (absent Shepard approved evidence) a violent felony for ACC purposes or a crime violence per USSG 4B1.2. This will not only impact the Career Offender guideline, but other guidelines that incorporate the crime of violence definition therein, including 2L1.2 (Illegal Re-Entry), 2K2.1 (Firearms), and 4A1.1(e) (multiple crimes of violence).
Officers are currently reviewing all pending cases and will be reaching out to counsel as necessary to discuss any modifications that will be made to the Presentence Report as a result of the Holloway decision.
Please feel free to share this e-mail with your colleagues.
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Huge congratulations are in order for Syrie Fried. This kind breakthrough rarely happens in the 1st Circuit.
