United States v. Mouscardy

11-2356

2013 | Cited 0 times | First Circuit | July 15, 2013

United States Court of Appeals For the First Circuit

No. 11-2356

UNITED STATES,

Appellee,

v.

REGINALD MOUSCARDY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Howard, Stahl and Lipez,

Circuit Judges.

Elaine Pourinski for appellant. Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

July 15, 2013

LIPEZ, Circuit Judge. Appellant Reginald Mouscardy was

charged with one count of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1). Mouscardy moved to suppress

the firearm, arguing that it was obtained through an illegal search

and seizure in violation of the Fourth Amendment. The district

court denied the motion, and the jury convicted Mouscardy of the

charged offense. Mouscardy now appeals the district court's denial

of his motion to suppress. Additionally, he appeals the district

court's determination that he is an armed career criminal.

We affirm.

I.

The facts, as supported by the record, are as follows.

On March 11, 2010, at approximately 12:30 p.m., an individual

called 911 to report an assault at the corner of Belmont and Ferry

Streets on the boundary of Everett and Malden, Massachusetts. The

call was routed to the Everett Police Department. The caller

reported that he saw a "man beating up his girlfriend or his wife,"

adding that the man was "giving it to her pretty good." The caller

also provided descriptions of the man and the woman.

The 911 dispatcher relayed the information to police

officers, describing the incident as a "possible domestic assault

in progress" on the corner of Belmont and Ferry Streets. Everett

Police Officer Matthew Cunningham and Sergeant Robert Zaino were

the first to respond. When the officers arrived, they found a man

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and a woman who fit the descriptions given by the 911 caller. The

man was later determined to be Reginald Mouscardy. Because the

officers believed that the alleged assault may have occurred on the

Malden side of Belmont Street, Officer Cunningham had Everett

dispatch contact Malden Police and request that they respond to the

scene.

Due to the nature of the 911 call, the Everett officers

separated Mouscardy and the woman in order to see whether they

would provide consistent accounts of the alleged incident. Officer

Cunningham took Mouscardy around the corner to the Malden side of

Belmont Street, where Mouscardy offered that nothing had happened

and that there was no problem. Officer Cunningham did not question

Mouscardy at this point.

After a brief period -- Officer Cunningham testified that

it was two to three minutes after his initial contact with

Mouscardy and the woman -- Malden Police Officer Robert Selfridge

arrived on the scene. Officer Selfridge first spoke with Sergeant

Zaino and the woman, who gave her name as Shannon Agnew. Agnew,

who appeared upset, told Officer Selfridge that nothing had

happened and that there had been no assault. She indicated that

she knew Mouscardy and that she had been in a relationship with him

for about three months, but she did not provide his name to the

officers. Officer Selfridge testified that his interaction with

Sergeant Zaino and Agnew lasted about thirty-five to forty seconds.

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Officer Selfridge then went around the corner to

interview Mouscardy. Mouscardy had his back against the wall of a

building, and Officer Cunningham was to Mouscardy's left. Officer

Selfridge first asked Officer Cunningham if Mouscardy had

identified himself; Officer Cunningham informed him that Mouscardy

refused to give his name. Officer Selfridge then asked Mouscardy

for his name or any form of identification numerous times, but

Mouscardy refused to comply, simply repeating that nothing had

happened.

Mouscardy had grown visibly "agitated and fidgety" by

this point, and he had begun "eye-balling" the area. Keeping his

right hand in his right jacket pocket, Mouscardy began to circle

away from the wall of the building until he was almost standing on

the street. Mouscardy's actions and demeanor made Officer

Selfridge uncomfortable, and he asked Officer Cunningham if

Mouscardy had been patted down. After Officer Cunningham told

Officer Selfridge that he had not performed a pat-down, Officer

Selfridge informed Mouscardy that he was going to search him for

weapons, and asked him to take his right hand out of his jacket

pocket. Mouscardy did not comply. Officer Selfridge initiated the

pat-down. When his left hand reached Mouscardy's right jacket

pocket, Mouscardy removed his right hand from the pocket and struck

Officer Selfridge's left hand with enough force to throw it above

Officer Selfridge's shoulder. Officer Selfridge then attempted to

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return his left hand to Mouscardy's right jacket pocket, and

Mouscardy attempted to slap it away again. Officer Selfridge

managed to grab the pocket, but Mouscardy then turned away and

started to flee. Although the stitching tore slightly, the

contents of the pocket remained enclosed and therefore unknown to

the officers.

Officers Cunningham and Selfridge gave chase as Mouscardy

fled on foot. Officer Selfridge estimated that he was within ten

to twelve feet of Mouscardy throughout the pursuit, while Officer

Cunningham followed slightly behind. As Mouscardy ran up the

driveway of a residence on Rich Street in Everett, Officer

Cunningham ran to the right side of the house in an apparent

attempt to block Mouscardy's path of escape while Officer Selfridge

remained on Mouscardy's heels.

During the chase, Officer Selfridge noticed that

Mouscardy was struggling to remove something from his right pocket.

Mouscardy managed to successfully remove the object, which he then

transferred from his right hand to his left hand. Officer

Selfridge observed that the object was a small handgun. In order

to alert Officer Cunningham, Officer Selfridge screamed "he's got

a gun" as he continued his pursuit. Mouscardy disappeared behind

the Rich Street residence, and Officer Selfridge, now knowing that

Mouscardy was armed, drew his weapon and maneuvered carefully

around the corner of the house, where he observed Mouscardy

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attempting to scale a chain-link fence with the pistol still in

hand. Officer Cunningham joined Officer Selfridge in the back yard

of the residence.

After several commands from police to drop the gun,

Mouscardy finally placed the pistol on top of a green plastic

container and walked toward the officers. A struggle ensued when

the officers attempted to handcuff Mouscardy pursuant to an arrest,

but he was eventually restrained near the basement door of the

residence. Officers retrieved the gun, which was determined to be

a .32 caliber Beretta. Mouscardy's true identity was discovered

when he was booked at the police station.

On March 31, 2010, a grand jury returned an indictment

against Mouscardy on a charge of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Mouscardy moved to

suppress the gun, arguing that (1) he had been illegally seized

after both he and Agnew told officers that no assault had occurred;

(2) the pat-down search was unconstitutional; and (3) his flight

from the officers could not trigger a reasonable suspicion of

criminal activity because it was spurred by the unconstitutional

pat-down search. Following an evidentiary hearing, the district

court denied the motion. The court found that it did not have to

address Mouscardy's arguments, as the gun was discovered through a

source independent of the allegedly unconstitutional means: by

striking Officer Selfridge during the pat-down, Mouscardy's actions

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violated Massachusetts criminal law, and the officers were

therefore justified in chasing and arresting him. The weapon was

therefore recovered incident to a lawful arrest. United States v.

Mouscardy, No. 10-10100-PBS, 2011 WL 2600550 , at *2 (D. Mass. June

28, 2011).

The case proceeded to trial. On July 26, 2011, the jury

found Mouscardy guilty. He was sentenced to twenty years in prison

as an armed career criminal and five years of supervised release.

This timely appeal followed.

II.

Mouscardy argues that the district court erred in denying

his motion to suppress. We review the denial of a motion to

suppress for clear error as to findings of fact. United States v.

Infante, 701 F.3d 386 , 392 (1st Cir. 2012). We review de novo any

conclusions of law, as well as the application of law to facts.

Id.

Although the district court based its denial on the

ground that the weapon was recovered incident to a lawful arrest

for striking a police officer, "[w]e may affirm the district

court's decision on any ground made manifest in the record."

United States v. Hart, 674 F.3d 33 , 39 (1st Cir. 2012). Because we

find that both the investigatory stop and the pat-frisk were

permissible, we need not determine whether the gun was also

admissible under the theory used by the district court.

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The Fourth Amendment's protections against "unreasonable

searches and seizures" by the government "extend to brief

investigatory stops of persons . . . that fall short of traditional

arrest." United States v. Arvizu, 534 U.S. 266 , 273 (2002). These

"brief investigatory stops" are commonly referred to as Terry

stops. See Terry v. Ohio, 392 U.S. 1 (1968). A Terry stop is, in

essence, "a brief detention of an individual for questioning based

on a police officer's reasonable suspicion that the person is or

has been engaged in criminal activity." United States v. Brake,

666 F.3d 800 , 804 (1st Cir. 2011). Because the temporary detention

of an individual constitutes a seizure for Fourth Amendment

purposes, a Terry stop is "subject to the constitutional imperative

that it must be reasonable under all the circumstances." United

States v. Coplin, 463 F.3d 96 , 100 (1st Cir. 2006) (quoting United

States v. Romain, 393 F.3d 63 , 70-71 (1st Cir. 2004)) (internal

quotation mark omitted).

Our review of a Terry stop involves a two-step analysis.

First, we ascertain whether the stop was justified at its

inception. United States v. Gates, 709 F.3d 58 , 62 (1st Cir.

2013). Second, we determine whether the "actions undertaken during

the stop [were] reasonably related in scope to the stop itself

'unless the police [had] a basis for expanding their

investigation.'" Id. (quoting United States v. Henderson, 463 F.3d

27 , 45 (1st Cir. 2006)).

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A. Initiation of the Stop

Mouscardy maintains that he was illegally seized for

Fourth Amendment purposes. In Mouscardy's view, based on the

officers' observations at the scene and the statements by Mouscardy

and Agnew that no assault had taken place, the police should have

determined that there was no evidence of the alleged assault, and

Mouscardy should have been allowed to leave.

The facts support a reasonable suspicion for the

investigatory stop. Officer Cunningham and Sergeant Zaino did not

approach Mouscardy and Agnew on a mere "hunch." See United States

v. Sokolow, 490 U.S. 1 , 7 (1989) ("The officer . . . [making the

Terry stop] must be able to articulate something more than an

'inchoate and unparticularized suspicion or hunch.'" (quoting

Terry, 392 U.S. at 27)). The officers found Mouscardy and Agnew at

the location that the caller had provided no more than a few

minutes after the Everett Police Department received the 911 call

reporting the assault. In his own recitation of the facts

presented before the district court, Mouscardy offers that the 911

caller "described the physical appearances of the male and female

involved in the alleged assault. . . . When [the officers] arrived

they saw two individuals who matched the description." These facts

alone are sufficient to establish that the officers had an

objectively reasonable basis for suspecting wrongdoing on the part

of Mouscardy. See United States v. Pardue, 385 F.3d 101 , 105 (1st

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Cir. 2004) (finding stop reasonable at its inception where officer

"knew that a domestic assault had been committed in the vicinity,

that it had been committed by someone whose physical description

matched that of the individual he saw, and that the assailant had

departed from the scene on foot").

B. Scope of the Stop

Having determined that "the officer[s'] actions were

justified at their inception," we now consider "whether the

officer[s'] subsequent actions were fairly responsive to the

emerging tableau." United States v. Chhien, 266 F.3d 1 , 6 (1st

Cir. 2001). Mouscardy challenges both the duration of the stop and

the legality of the frisk. We consider both arguments in turn.

1. Duration of the Stop

Mouscardy argues that the stop was unnecessarily

prolonged. While it is true that "[a] lawful Terry stop may . . .

metamorphose into an overly prolonged . . . detention (and, thus,

become unlawful)," United States v. Lee, 317 F.3d 26 , 31 (1st Cir.

2003), the length of the stop in this case was not unreasonable.

After separating Mouscardy and Agnew, Officer Cunningham

stood with Mouscardy and waited for the arrival of the Malden

officers. According to Officer Cunningham, no questioning took

place during this time. When Officer Selfridge arrived, he briefly

asked Mouscardy questions related to the reported domestic assault

and attempted to learn Mouscardy's identity. Officer Cunningham

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testified that Officer Selfridge arrived on the scene within two to

three minutes of his initial contact with Mouscardy, and that

Mouscardy began his flight (and thus effectively ended the Terry

stop) "maybe three minutes" after Officer Selfridge arrived.

Officer Selfridge's testimony that Mouscardy fled within a minute

and a half to three minutes of his arrival supports Officer

Cunningham's version of the events.

Based on these facts, it is apparent that the stop was

brief. Although not dispositive alone, the relative brevity of the

detainment supports the conclusion that Mouscardy's seizure did not

exceed the boundaries of a permissible Terry stop. See United

States v. Rabbia, 699 F.3d 85 , 93 (1st Cir. 2012) (no de facto

arrest where suspect was detained for thirty minutes); United

States v. Teemer, 394 F.3d 59 , 66 (1st Cir. 2005) (no de facto

arrest where suspect was detained for "slightly over 30 minutes");

United States v. Quinn, 815 F.2d 153 , 156 (1st Cir. 1987) (no de

facto arrest where police interrogated suspect for twenty to

twenty-five minutes).

In addition to the overall brevity of the stop, there is

no evidence that it was unreasonably prolonged. When assessing the

appropriateness of the duration of an investigatory stop, we ask

"whether the length of [the] detention was reasonable, considering

'the law enforcement purposes to be served by the stop . . . and

whether the police diligently pursued a means of investigation that

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was likely to confirm or dispel their suspicions quickly, during

which time it was necessary to detain the defendant.'" United

States v. Acosta-Colon, 157 F.3d 9 , 20 (1st Cir. 1998) (omission in

original) (quoting United States v. McCarthy, 77 F.3d 522 , 530 (1st

Cir. 1996)); see also United States v. Sharpe, 470 U.S. 675 , 686

(1985). Here the officers' purpose for stopping and questioning

Mouscardy was to investigate the reported domestic assault.

Officer Selfridge testified that as part of investigating such

domestic incidents, he identifies the parties in order to determine

whether the individuals have any outstanding arrest warrants or

restraining orders. It is undeniably both appropriate and

important for an officer to take steps to identify the parties

involved in a domestic dispute. See Hiibel v. Sixth Judicial Dist.

Court of Nev., 542 U.S. 177 , 186 (2004) ("Identity may prove

particularly important . . . where the police are investigating

what appears to be a domestic assault. Officers called to

investigate domestic disputes need to know whom they are dealing

with in order to assess the situation, the threat to their own

safety, and possible danger to the potential victim."). The "means

of investigation" Officer Selfridge used to gain this information

could not have been more straightforward: he asked Mouscardy his

name. Mouscardy, however, refused to reveal his identity or

produce any form of identification. Officer Selfridge asked again,

and again Mouscardy refused. Officer Selfridge testified that he

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asked Mouscardy to identify himself or produce identification half

a dozen times, to no avail.

We have previously held that in evaluating a claim of

unreasonable prolongation of an investigative stop, the fact that

a suspect's responses to the officer's questions "were evasive and,

at times, defiant is relevant in evaluating the scope of the

officer['s] conduct." McCarthy, 77 F.3d at 531. Mouscardy's

unresponsiveness to Officer Selfridge's reasonable inquiries

prevented the officers from completing their investigation more

quickly. Mouscardy cannot profit from the delay he himself caused.

See Sharpe, 470 U.S. at 688 (rejecting contention that twenty-

minute stop was unreasonable where officers acted diligently and

the "suspect's actions contribute[d] to the added delay about which

he complain[ed]").

2. The Frisk

Mouscardy argues that even if the investigatory stop was

justified, Officer Selfridge's attempt to conduct a pat-frisk was

not. According to Mouscardy, Officer Selfridge initiated the frisk

in the absence of a reasonable belief that Mouscardy was armed and

dangerous.

As Mouscardy correctly notes, "we have held that a de

facto arrest occurs when 'a reasonable man in the suspect's

position would have understood his situation, in the circumstances

then obtaining, to be tantamount to being under arrest.'" United

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States v. Jones, 700 F.3d 615 , 624 (1st Cir. 2012) (quoting United

States v. Zapata, 18 F.3d 971 , 975 (1st Cir. 1994)). However, we

have also made clear that "in making this assessment, we . . . must

keep in mind that police conducting a Terry stop are entitled to

take reasonable measures to protect their own safety and taking

such measures does not transform a Terry stop into an arrest." Id;

see also United States v. Pontoo, 666 F.3d 20 , 30 (1st Cir. 2011)

("In a world fraught with peril, officer safety must have a place

at the forefront of police work."); United States v. Mohamed, 630

F.3d 1 , 6 (1st Cir. 2010) (noting that during a Terry stop,

"[o]fficers are permitted to take actions to protect their own

safety and the safety of others in the area"); United States v.

Walker, 924 F.2d 1 , 4 (1st Cir. 1991) ("[An officer's] concern[]

for his own safety is of paramount importance in assessing the

appropriateness of the action taken."). These reasonable measures

include "conducting a pat-frisk if under all the circumstances they

have 'a particularized and objective basis to suspect the

individual ha[s] a weapon.'" United States v. Dancy, 640 F.3d 455 ,

461 (1st Cir. 2011) (alteration in original) (quoting Mohamed, 630

F.3d at 6); see also Arizona v. Johnson, 555 U.S. 323 , 326-27

(2009) ("[T]o proceed from a stop to a frisk, the police officer

must reasonably suspect that the person stopped is armed and

dangerous.").

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Here the facts demonstrate that Officer Selfridge acted

reasonably out of a concern for his and the other officers' safety

in initiating the frisk. The officers were responding to a report

of a man beating a woman in the street. When an officer has a

reasonable suspicion that a crime of violence has occurred, "the

same information that will support an investigatory stop will

without more support a frisk." United States v. Scott, 270 F.3d

30 , 41 (1st Cir. 2001) (emphasis added); see also United States v.

Sanchez, 519 F.3d 1208 , 1211, 1216 (10th Cir. 2008) (holding that

police officers reasonably suspected occupant of car might be armed

and dangerous based in part on witness report that occupant had

just punched a woman in the face). The fact that Mouscardy was

suspected to have committed a violent crime is therefore highly

relevant in our determination of whether Officer Selfridge's

suspicions were reasonable.

Mouscardy's conduct and disposition during the stop also

support a finding that the frisk was justified. As discussed

above, Mouscardy repeatedly refused to identify himself, see United

States v. Campbell, 549 F.3d 364 , 372 (6th Cir. 2008) (holding that

passenger's failure to provide identification, "possibly to conceal

his identity," was factor that could be considered in determining

whether pat-down during Terry stop was appropriate), and refused to

remove his hand from his pocket despite several requests by Officer

Selfridge, see United States v. Dubose, 579 F.3d 117 , 122 (1st Cir.

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2009) (suspect's refusal to remove his hand from his pocket was

factor supporting officer's reasonable suspicion that suspect was

armed and dangerous); United States v. Soares, 521 F.3d 117 , 121

(1st Cir. 2008) (suspect's refusal to heed officer's orders to keep

his hands visible contributed to officer's reasonable suspicion).1

Additionally, as the stop progressed, Mouscardy became agitated and

nervous, moving around and "eye-balling" the area. Although

nervous behavior alone is not sufficient to establish the

reasonable suspicion necessary for a pat-frisk, see United States

v. McKoy, 428 F.3d 38 , 41 (1st Cir. 2005); see also United States

v. Spinner, 475 F.3d 356 , 360 (D.C. Cir. 2007) ("[T]he suspicion

that someone is armed . . . must be based upon something more than

his mere nervousness. A person stopped by the police is entitled

to be nervous without thereby suggesting he is armed and dangerous

. . . ."), such behavior is a relevant factor to be considered

along with others in assessing the totality of the circumstances,

see United States v. Chaney, 584 F.3d 20 , 27 (1st Cir. 2009).2

1 Indeed, some circuits have held that a suspect's refusal to remove his hand from his pocket during a valid Terry stop is alone sufficient to justify a protective frisk. See United States v. Cornelius, 391 F.3d 965 , 968 (8th Cir. 2004) (frisk justified where suspect placed his hand in his jacket pocket then refused to remove it); United States v. Harris, 313 F.3d 1228 , 1236 (10th Cir. 2002) ("When Defendant refused to remove his hands [from his pockets], [the officer] was reasonably justified in believing that Defendant might be armed and dangerous."). 2 As well as providing support for Officer Selfridge's decision to perform a pat-frisk, Mouscardy's nervous, agitated behavior supported Officer Selfridge's initial requests that

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Accordingly, we conclude that, in light of the totality

of the circumstances, Officer Selfridge had a reasonable suspicion

that Mouscardy might be armed and dangerous, thus justifying his

initiation of the frisk.

III.

Mouscardy maintains that his Sixth Amendment rights were

violated when the district court sentenced him as an armed career

criminal because the predicate offenses on which the district court

relied are not categorically violent felonies under the Armed

Career Criminal Act ("ACCA"), and because the government failed to

present documents that support a finding that his predicate

offenses were in fact violent. We review de novo whether the

convictions upon which the district court relied categorically

qualify as ACCA predicate offenses. Hart, 674 F.3d at 40.

To be eligible for an ACCA enhancement, Mouscardy "had to

have been convicted of three prior violent felonies, serious drug

offenses, or a combination thereof." Id.; see 18 U.S.C.

§ 924(e)(1). A "violent felony" is defined by the statute as

any crime punishable by 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

Mouscardy remove his hand from his pocket. Considering the totality of the circumstances, Officer Selfridge's requests were reasonable and did not impermissibly expand the scope of the stop.

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(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). We have referred to the first clause as

the "force clause," and the portion of the second clause following

the enumerated offenses as the "residual clause." Hart, 674 F.3d

at 41.

"Under either clause, we take a categorical approach in

determining whether a conviction qualifies as an ACCA predicate

offense, meaning we 'consider only the offense's legal definition,

forgoing any inquiry into how the defendant may have committed the

offense.'" Id. (quoting United States v. Holloway, 630 F.3d 252 ,

256 (1st Cir. 2011)). In determining the offense's legal

definition, state court constructions of the applicable state

statutes control. Id. If the statutes "subsume[] only ACCA

predicate offenses," we need go no further. Id. (emphasis added).

However, when a defendant is convicted under a statute that covers

multiple offenses, "a court may look to a restricted set of

documents (e.g., indictment, plea colloquy, jury instructions) to

ascertain which of the multiple offenses served as the offense of

conviction." Holloway, 630 F.3d at 257. These documents are known

as "Shepard documents." Hart, 674 F.3d at 41 (citing Shepard v.

United States, 544 U.S. 13 , 26 (2005)). "If the Shepard documents

prove inconclusive, such that the court cannot ascertain the

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offense of conviction, the conviction cannot qualify as an ACCA

predicate." Id.

The presentence report classified seven of Mouscardy's

prior convictions as ACCA predicates: (1) a 1997 conviction for

possession of crack cocaine with intent to distribute and resisting

arrest; (2) a 1999 conviction for assault and battery with a

dangerous weapon ("ABDW"); (3) a 2000 conviction for assault and

battery on a police officer ("ABPO") and resisting arrest; (4) a

2002 conviction for assault with a dangerous weapon (knife)

("ADW"); (5) a 2002 conviction for ABPO and ABDW; (6) a 2003

conviction for ABPO, ADW (knife), and resisting arrest; (7) a 2005

conviction for distribution of crack cocaine.3 Mouscardy argues

that, because the Massachusetts crime of ABDW can be committed

recklessly, it is not a categorically violent felony under the

ACCA. He also urges us to reconsider our prior decisions holding

that ABPO and resisting arrest are categorically violent felonies

under the ACCA. Mouscardy relies generally on our opinion in

Holloway, where we held that the Massachusetts crime of simple

assault and battery was not a categorically violent felony because

it can be committed recklessly. 630 F.3d at 262.

3 At sentencing, there was some dispute as to whether Mouscardy's 2005 conviction for distribution of crack cocaine was final. The district court declined to consider that conviction in determining whether Mouscardy qualified for the ACCA enhancement, concluding that "[i]t's irrelevant because of the huge numbers of assault and battery with a dangerous weapon [convictions] and the assault and batteries on a police officer."

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The law of the circuit doctrine forecloses Mouscardy's

challenge. Pursuant to that doctrine, we are "bound by a prior

panel decision, absent any intervening authority." United States

v. Grupee, 682 F.3d 143 , 149 (1st Cir. 2012). In United States v.

Hart -- a case decided after Holloway -- we held that a

Massachusetts conviction for ABDW categorically applies as a

predicate offense under 18 U.S.C. § 924(e)(2)(B)(ii). 674 F.3d at

44, cert. denied, 133 S. Ct. 228 (2012). In United States v.

Dancy, another case decided post-Holloway, we held that the

Massachusetts crime of ABPO is categorically a violent felony under

the ACCA. 640 F.3d at 468-70. Because Mouscardy has failed to

identify any supervening authority that would cast doubt on the

validity of Hart or Dancy, his challenges to the designation of his

ABDW and ABPO convictions as valid ACCA predicates are barred by

the law of the circuit doctrine.

Considering only his ABDW and ABPO convictions, Mouscardy

has four qualifying predicates, one more than is required for an

ACCA enhancement. We therefore conclude that the district court

did not err in sentencing Mouscardy as an armed career criminal.4

4 Mouscardy devotes a short paragraph in his brief to the argument that the residual clause of the Armed Career Criminal Act should be considered void for vagueness. This argument is plainly foreclosed by Supreme Court precedent and our own. See Sykes v. United States, 131 S. Ct. 2267 , 2277 (2011); James v. United States, 550 U.S. 192 , 210 n.6 (2007); United States v. Hart, 674 F.3d 33 , 41 n.3 (1st Cir. 2012).

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IV.

For the foregoing reasons, we affirm Mouscardy's

conviction and sentence.

So ordered.

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United States Court of Appeals For the First Circuit

No. 11-2356

UNITED STATES,

Appellee,

v.

REGINALD MOUSCARDY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Howard, Stahl and Lipez,

Circuit Judges.

Elaine Pourinski for appellant. Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

July 15, 2013

LIPEZ, Circuit Judge. Appellant Reginald Mouscardy was

charged with one count of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1). Mouscardy moved to suppress

the firearm, arguing that it was obtained through an illegal search

and seizure in violation of the Fourth Amendment. The district

court denied the motion, and the jury convicted Mouscardy of the

charged offense. Mouscardy now appeals the district court's denial

of his motion to suppress. Additionally, he appeals the district

court's determination that he is an armed career criminal.

We affirm.

I.

The facts, as supported by the record, are as follows.

On March 11, 2010, at approximately 12:30 p.m., an individual

called 911 to report an assault at the corner of Belmont and Ferry

Streets on the boundary of Everett and Malden, Massachusetts. The

call was routed to the Everett Police Department. The caller

reported that he saw a "man beating up his girlfriend or his wife,"

adding that the man was "giving it to her pretty good." The caller

also provided descriptions of the man and the woman.

The 911 dispatcher relayed the information to police

officers, describing the incident as a "possible domestic assault

in progress" on the corner of Belmont and Ferry Streets. Everett

Police Officer Matthew Cunningham and Sergeant Robert Zaino were

the first to respond. When the officers arrived, they found a man

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and a woman who fit the descriptions given by the 911 caller. The

man was later determined to be Reginald Mouscardy. Because the

officers believed that the alleged assault may have occurred on the

Malden side of Belmont Street, Officer Cunningham had Everett

dispatch contact Malden Police and request that they respond to the

scene.

Due to the nature of the 911 call, the Everett officers

separated Mouscardy and the woman in order to see whether they

would provide consistent accounts of the alleged incident. Officer

Cunningham took Mouscardy around the corner to the Malden side of

Belmont Street, where Mouscardy offered that nothing had happened

and that there was no problem. Officer Cunningham did not question

Mouscardy at this point.

After a brief period -- Officer Cunningham testified that

it was two to three minutes after his initial contact with

Mouscardy and the woman -- Malden Police Officer Robert Selfridge

arrived on the scene. Officer Selfridge first spoke with Sergeant

Zaino and the woman, who gave her name as Shannon Agnew. Agnew,

who appeared upset, told Officer Selfridge that nothing had

happened and that there had been no assault. She indicated that

she knew Mouscardy and that she had been in a relationship with him

for about three months, but she did not provide his name to the

officers. Officer Selfridge testified that his interaction with

Sergeant Zaino and Agnew lasted about thirty-five to forty seconds.

-3-

Officer Selfridge then went around the corner to

interview Mouscardy. Mouscardy had his back against the wall of a

building, and Officer Cunningham was to Mouscardy's left. Officer

Selfridge first asked Officer Cunningham if Mouscardy had

identified himself; Officer Cunningham informed him that Mouscardy

refused to give his name. Officer Selfridge then asked Mouscardy

for his name or any form of identification numerous times, but

Mouscardy refused to comply, simply repeating that nothing had

happened.

Mouscardy had grown visibly "agitated and fidgety" by

this point, and he had begun "eye-balling" the area. Keeping his

right hand in his right jacket pocket, Mouscardy began to circle

away from the wall of the building until he was almost standing on

the street. Mouscardy's actions and demeanor made Officer

Selfridge uncomfortable, and he asked Officer Cunningham if

Mouscardy had been patted down. After Officer Cunningham told

Officer Selfridge that he had not performed a pat-down, Officer

Selfridge informed Mouscardy that he was going to search him for

weapons, and asked him to take his right hand out of his jacket

pocket. Mouscardy did not comply. Officer Selfridge initiated the

pat-down. When his left hand reached Mouscardy's right jacket

pocket, Mouscardy removed his right hand from the pocket and struck

Officer Selfridge's left hand with enough force to throw it above

Officer Selfridge's shoulder. Officer Selfridge then attempted to

-4-

return his left hand to Mouscardy's right jacket pocket, and

Mouscardy attempted to slap it away again. Officer Selfridge

managed to grab the pocket, but Mouscardy then turned away and

started to flee. Although the stitching tore slightly, the

contents of the pocket remained enclosed and therefore unknown to

the officers.

Officers Cunningham and Selfridge gave chase as Mouscardy

fled on foot. Officer Selfridge estimated that he was within ten

to twelve feet of Mouscardy throughout the pursuit, while Officer

Cunningham followed slightly behind. As Mouscardy ran up the

driveway of a residence on Rich Street in Everett, Officer

Cunningham ran to the right side of the house in an apparent

attempt to block Mouscardy's path of escape while Officer Selfridge

remained on Mouscardy's heels.

During the chase, Officer Selfridge noticed that

Mouscardy was struggling to remove something from his right pocket.

Mouscardy managed to successfully remove the object, which he then

transferred from his right hand to his left hand. Officer

Selfridge observed that the object was a small handgun. In order

to alert Officer Cunningham, Officer Selfridge screamed "he's got

a gun" as he continued his pursuit. Mouscardy disappeared behind

the Rich Street residence, and Officer Selfridge, now knowing that

Mouscardy was armed, drew his weapon and maneuvered carefully

around the corner of the house, where he observed Mouscardy

-5-

attempting to scale a chain-link fence with the pistol still in

hand. Officer Cunningham joined Officer Selfridge in the back yard

of the residence.

After several commands from police to drop the gun,

Mouscardy finally placed the pistol on top of a green plastic

container and walked toward the officers. A struggle ensued when

the officers attempted to handcuff Mouscardy pursuant to an arrest,

but he was eventually restrained near the basement door of the

residence. Officers retrieved the gun, which was determined to be

a .32 caliber Beretta. Mouscardy's true identity was discovered

when he was booked at the police station.

On March 31, 2010, a grand jury returned an indictment

against Mouscardy on a charge of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Mouscardy moved to

suppress the gun, arguing that (1) he had been illegally seized

after both he and Agnew told officers that no assault had occurred;

(2) the pat-down search was unconstitutional; and (3) his flight

from the officers could not trigger a reasonable suspicion of

criminal activity because it was spurred by the unconstitutional

pat-down search. Following an evidentiary hearing, the district

court denied the motion. The court found that it did not have to

address Mouscardy's arguments, as the gun was discovered through a

source independent of the allegedly unconstitutional means: by

striking Officer Selfridge during the pat-down, Mouscardy's actions

-6-

violated Massachusetts criminal law, and the officers were

therefore justified in chasing and arresting him. The weapon was

therefore recovered incident to a lawful arrest. United States v.

Mouscardy, No. 10-10100-PBS, 2011 WL 2600550 , at *2 (D. Mass. June

28, 2011).

The case proceeded to trial. On July 26, 2011, the jury

found Mouscardy guilty. He was sentenced to twenty years in prison

as an armed career criminal and five years of supervised release.

This timely appeal followed.

II.

Mouscardy argues that the district court erred in denying

his motion to suppress. We review the denial of a motion to

suppress for clear error as to findings of fact. United States v.

Infante, 701 F.3d 386 , 392 (1st Cir. 2012). We review de novo any

conclusions of law, as well as the application of law to facts.

Id.

Although the district court based its denial on the

ground that the weapon was recovered incident to a lawful arrest

for striking a police officer, "[w]e may affirm the district

court's decision on any ground made manifest in the record."

United States v. Hart, 674 F.3d 33 , 39 (1st Cir. 2012). Because we

find that both the investigatory stop and the pat-frisk were

permissible, we need not determine whether the gun was also

admissible under the theory used by the district court.

-7-

The Fourth Amendment's protections against "unreasonable

searches and seizures" by the government "extend to brief

investigatory stops of persons . . . that fall short of traditional

arrest." United States v. Arvizu, 534 U.S. 266 , 273 (2002). These

"brief investigatory stops" are commonly referred to as Terry

stops. See Terry v. Ohio, 392 U.S. 1 (1968). A Terry stop is, in

essence, "a brief detention of an individual for questioning based

on a police officer's reasonable suspicion that the person is or

has been engaged in criminal activity." United States v. Brake,

666 F.3d 800 , 804 (1st Cir. 2011). Because the temporary detention

of an individual constitutes a seizure for Fourth Amendment

purposes, a Terry stop is "subject to the constitutional imperative

that it must be reasonable under all the circumstances." United

States v. Coplin, 463 F.3d 96 , 100 (1st Cir. 2006) (quoting United

States v. Romain, 393 F.3d 63 , 70-71 (1st Cir. 2004)) (internal

quotation mark omitted).

Our review of a Terry stop involves a two-step analysis.

First, we ascertain whether the stop was justified at its

inception. United States v. Gates, 709 F.3d 58 , 62 (1st Cir.

2013). Second, we determine whether the "actions undertaken during

the stop [were] reasonably related in scope to the stop itself

'unless the police [had] a basis for expanding their

investigation.'" Id. (quoting United States v. Henderson, 463 F.3d

27 , 45 (1st Cir. 2006)).

-8-

A. Initiation of the Stop

Mouscardy maintains that he was illegally seized for

Fourth Amendment purposes. In Mouscardy's view, based on the

officers' observations at the scene and the statements by Mouscardy

and Agnew that no assault had taken place, the police should have

determined that there was no evidence of the alleged assault, and

Mouscardy should have been allowed to leave.

The facts support a reasonable suspicion for the

investigatory stop. Officer Cunningham and Sergeant Zaino did not

approach Mouscardy and Agnew on a mere "hunch." See United States

v. Sokolow, 490 U.S. 1 , 7 (1989) ("The officer . . . [making the

Terry stop] must be able to articulate something more than an

'inchoate and unparticularized suspicion or hunch.'" (quoting

Terry, 392 U.S. at 27)). The officers found Mouscardy and Agnew at

the location that the caller had provided no more than a few

minutes after the Everett Police Department received the 911 call

reporting the assault. In his own recitation of the facts

presented before the district court, Mouscardy offers that the 911

caller "described the physical appearances of the male and female

involved in the alleged assault. . . . When [the officers] arrived

they saw two individuals who matched the description." These facts

alone are sufficient to establish that the officers had an

objectively reasonable basis for suspecting wrongdoing on the part

of Mouscardy. See United States v. Pardue, 385 F.3d 101 , 105 (1st

-9-

Cir. 2004) (finding stop reasonable at its inception where officer

"knew that a domestic assault had been committed in the vicinity,

that it had been committed by someone whose physical description

matched that of the individual he saw, and that the assailant had

departed from the scene on foot").

B. Scope of the Stop

Having determined that "the officer[s'] actions were

justified at their inception," we now consider "whether the

officer[s'] subsequent actions were fairly responsive to the

emerging tableau." United States v. Chhien, 266 F.3d 1 , 6 (1st

Cir. 2001). Mouscardy challenges both the duration of the stop and

the legality of the frisk. We consider both arguments in turn.

1. Duration of the Stop

Mouscardy argues that the stop was unnecessarily

prolonged. While it is true that "[a] lawful Terry stop may . . .

metamorphose into an overly prolonged . . . detention (and, thus,

become unlawful)," United States v. Lee, 317 F.3d 26 , 31 (1st Cir.

2003), the length of the stop in this case was not unreasonable.

After separating Mouscardy and Agnew, Officer Cunningham

stood with Mouscardy and waited for the arrival of the Malden

officers. According to Officer Cunningham, no questioning took

place during this time. When Officer Selfridge arrived, he briefly

asked Mouscardy questions related to the reported domestic assault

and attempted to learn Mouscardy's identity. Officer Cunningham

-10-

testified that Officer Selfridge arrived on the scene within two to

three minutes of his initial contact with Mouscardy, and that

Mouscardy began his flight (and thus effectively ended the Terry

stop) "maybe three minutes" after Officer Selfridge arrived.

Officer Selfridge's testimony that Mouscardy fled within a minute

and a half to three minutes of his arrival supports Officer

Cunningham's version of the events.

Based on these facts, it is apparent that the stop was

brief. Although not dispositive alone, the relative brevity of the

detainment supports the conclusion that Mouscardy's seizure did not

exceed the boundaries of a permissible Terry stop. See United

States v. Rabbia, 699 F.3d 85 , 93 (1st Cir. 2012) (no de facto

arrest where suspect was detained for thirty minutes); United

States v. Teemer, 394 F.3d 59 , 66 (1st Cir. 2005) (no de facto

arrest where suspect was detained for "slightly over 30 minutes");

United States v. Quinn, 815 F.2d 153 , 156 (1st Cir. 1987) (no de

facto arrest where police interrogated suspect for twenty to

twenty-five minutes).

In addition to the overall brevity of the stop, there is

no evidence that it was unreasonably prolonged. When assessing the

appropriateness of the duration of an investigatory stop, we ask

"whether the length of [the] detention was reasonable, considering

'the law enforcement purposes to be served by the stop . . . and

whether the police diligently pursued a means of investigation that

-11-

was likely to confirm or dispel their suspicions quickly, during

which time it was necessary to detain the defendant.'" United

States v. Acosta-Colon, 157 F.3d 9 , 20 (1st Cir. 1998) (omission in

original) (quoting United States v. McCarthy, 77 F.3d 522 , 530 (1st

Cir. 1996)); see also United States v. Sharpe, 470 U.S. 675 , 686

(1985). Here the officers' purpose for stopping and questioning

Mouscardy was to investigate the reported domestic assault.

Officer Selfridge testified that as part of investigating such

domestic incidents, he identifies the parties in order to determine

whether the individuals have any outstanding arrest warrants or

restraining orders. It is undeniably both appropriate and

important for an officer to take steps to identify the parties

involved in a domestic dispute. See Hiibel v. Sixth Judicial Dist.

Court of Nev., 542 U.S. 177 , 186 (2004) ("Identity may prove

particularly important . . . where the police are investigating

what appears to be a domestic assault. Officers called to

investigate domestic disputes need to know whom they are dealing

with in order to assess the situation, the threat to their own

safety, and possible danger to the potential victim."). The "means

of investigation" Officer Selfridge used to gain this information

could not have been more straightforward: he asked Mouscardy his

name. Mouscardy, however, refused to reveal his identity or

produce any form of identification. Officer Selfridge asked again,

and again Mouscardy refused. Officer Selfridge testified that he

-12-

asked Mouscardy to identify himself or produce identification half

a dozen times, to no avail.

We have previously held that in evaluating a claim of

unreasonable prolongation of an investigative stop, the fact that

a suspect's responses to the officer's questions "were evasive and,

at times, defiant is relevant in evaluating the scope of the

officer['s] conduct." McCarthy, 77 F.3d at 531. Mouscardy's

unresponsiveness to Officer Selfridge's reasonable inquiries

prevented the officers from completing their investigation more

quickly. Mouscardy cannot profit from the delay he himself caused.

See Sharpe, 470 U.S. at 688 (rejecting contention that twenty-

minute stop was unreasonable where officers acted diligently and

the "suspect's actions contribute[d] to the added delay about which

he complain[ed]").

2. The Frisk

Mouscardy argues that even if the investigatory stop was

justified, Officer Selfridge's attempt to conduct a pat-frisk was

not. According to Mouscardy, Officer Selfridge initiated the frisk

in the absence of a reasonable belief that Mouscardy was armed and

dangerous.

As Mouscardy correctly notes, "we have held that a de

facto arrest occurs when 'a reasonable man in the suspect's

position would have understood his situation, in the circumstances

then obtaining, to be tantamount to being under arrest.'" United

-13-

States v. Jones, 700 F.3d 615 , 624 (1st Cir. 2012) (quoting United

States v. Zapata, 18 F.3d 971 , 975 (1st Cir. 1994)). However, we

have also made clear that "in making this assessment, we . . . must

keep in mind that police conducting a Terry stop are entitled to

take reasonable measures to protect their own safety and taking

such measures does not transform a Terry stop into an arrest." Id;

see also United States v. Pontoo, 666 F.3d 20 , 30 (1st Cir. 2011)

("In a world fraught with peril, officer safety must have a place

at the forefront of police work."); United States v. Mohamed, 630

F.3d 1 , 6 (1st Cir. 2010) (noting that during a Terry stop,

"[o]fficers are permitted to take actions to protect their own

safety and the safety of others in the area"); United States v.

Walker, 924 F.2d 1 , 4 (1st Cir. 1991) ("[An officer's] concern[]

for his own safety is of paramount importance in assessing the

appropriateness of the action taken."). These reasonable measures

include "conducting a pat-frisk if under all the circumstances they

have 'a particularized and objective basis to suspect the

individual ha[s] a weapon.'" United States v. Dancy, 640 F.3d 455 ,

461 (1st Cir. 2011) (alteration in original) (quoting Mohamed, 630

F.3d at 6); see also Arizona v. Johnson, 555 U.S. 323 , 326-27

(2009) ("[T]o proceed from a stop to a frisk, the police officer

must reasonably suspect that the person stopped is armed and

dangerous.").

-14-

Here the facts demonstrate that Officer Selfridge acted

reasonably out of a concern for his and the other officers' safety

in initiating the frisk. The officers were responding to a report

of a man beating a woman in the street. When an officer has a

reasonable suspicion that a crime of violence has occurred, "the

same information that will support an investigatory stop will

without more support a frisk." United States v. Scott, 270 F.3d

30 , 41 (1st Cir. 2001) (emphasis added); see also United States v.

Sanchez, 519 F.3d 1208 , 1211, 1216 (10th Cir. 2008) (holding that

police officers reasonably suspected occupant of car might be armed

and dangerous based in part on witness report that occupant had

just punched a woman in the face). The fact that Mouscardy was

suspected to have committed a violent crime is therefore highly

relevant in our determination of whether Officer Selfridge's

suspicions were reasonable.

Mouscardy's conduct and disposition during the stop also

support a finding that the frisk was justified. As discussed

above, Mouscardy repeatedly refused to identify himself, see United

States v. Campbell, 549 F.3d 364 , 372 (6th Cir. 2008) (holding that

passenger's failure to provide identification, "possibly to conceal

his identity," was factor that could be considered in determining

whether pat-down during Terry stop was appropriate), and refused to

remove his hand from his pocket despite several requests by Officer

Selfridge, see United States v. Dubose, 579 F.3d 117 , 122 (1st Cir.

-15-

2009) (suspect's refusal to remove his hand from his pocket was

factor supporting officer's reasonable suspicion that suspect was

armed and dangerous); United States v. Soares, 521 F.3d 117 , 121

(1st Cir. 2008) (suspect's refusal to heed officer's orders to keep

his hands visible contributed to officer's reasonable suspicion).1

Additionally, as the stop progressed, Mouscardy became agitated and

nervous, moving around and "eye-balling" the area. Although

nervous behavior alone is not sufficient to establish the

reasonable suspicion necessary for a pat-frisk, see United States

v. McKoy, 428 F.3d 38 , 41 (1st Cir. 2005); see also United States

v. Spinner, 475 F.3d 356 , 360 (D.C. Cir. 2007) ("[T]he suspicion

that someone is armed . . . must be based upon something more than

his mere nervousness. A person stopped by the police is entitled

to be nervous without thereby suggesting he is armed and dangerous

. . . ."), such behavior is a relevant factor to be considered

along with others in assessing the totality of the circumstances,

see United States v. Chaney, 584 F.3d 20 , 27 (1st Cir. 2009).2

1 Indeed, some circuits have held that a suspect's refusal to remove his hand from his pocket during a valid Terry stop is alone sufficient to justify a protective frisk. See United States v. Cornelius, 391 F.3d 965 , 968 (8th Cir. 2004) (frisk justified where suspect placed his hand in his jacket pocket then refused to remove it); United States v. Harris, 313 F.3d 1228 , 1236 (10th Cir. 2002) ("When Defendant refused to remove his hands [from his pockets], [the officer] was reasonably justified in believing that Defendant might be armed and dangerous."). 2 As well as providing support for Officer Selfridge's decision to perform a pat-frisk, Mouscardy's nervous, agitated behavior supported Officer Selfridge's initial requests that

-16-

Accordingly, we conclude that, in light of the totality

of the circumstances, Officer Selfridge had a reasonable suspicion

that Mouscardy might be armed and dangerous, thus justifying his

initiation of the frisk.

III.

Mouscardy maintains that his Sixth Amendment rights were

violated when the district court sentenced him as an armed career

criminal because the predicate offenses on which the district court

relied are not categorically violent felonies under the Armed

Career Criminal Act ("ACCA"), and because the government failed to

present documents that support a finding that his predicate

offenses were in fact violent. We review de novo whether the

convictions upon which the district court relied categorically

qualify as ACCA predicate offenses. Hart, 674 F.3d at 40.

To be eligible for an ACCA enhancement, Mouscardy "had to

have been convicted of three prior violent felonies, serious drug

offenses, or a combination thereof." Id.; see 18 U.S.C.

§ 924(e)(1). A "violent felony" is defined by the statute as

any crime punishable by 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

Mouscardy remove his hand from his pocket. Considering the totality of the circumstances, Officer Selfridge's requests were reasonable and did not impermissibly expand the scope of the stop.

-17-

(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). We have referred to the first clause as

the "force clause," and the portion of the second clause following

the enumerated offenses as the "residual clause." Hart, 674 F.3d

at 41.

"Under either clause, we take a categorical approach in

determining whether a conviction qualifies as an ACCA predicate

offense, meaning we 'consider only the offense's legal definition,

forgoing any inquiry into how the defendant may have committed the

offense.'" Id. (quoting United States v. Holloway, 630 F.3d 252 ,

256 (1st Cir. 2011)). In determining the offense's legal

definition, state court constructions of the applicable state

statutes control. Id. If the statutes "subsume[] only ACCA

predicate offenses," we need go no further. Id. (emphasis added).

However, when a defendant is convicted under a statute that covers

multiple offenses, "a court may look to a restricted set of

documents (e.g., indictment, plea colloquy, jury instructions) to

ascertain which of the multiple offenses served as the offense of

conviction." Holloway, 630 F.3d at 257. These documents are known

as "Shepard documents." Hart, 674 F.3d at 41 (citing Shepard v.

United States, 544 U.S. 13 , 26 (2005)). "If the Shepard documents

prove inconclusive, such that the court cannot ascertain the

-18-

offense of conviction, the conviction cannot qualify as an ACCA

predicate." Id.

The presentence report classified seven of Mouscardy's

prior convictions as ACCA predicates: (1) a 1997 conviction for

possession of crack cocaine with intent to distribute and resisting

arrest; (2) a 1999 conviction for assault and battery with a

dangerous weapon ("ABDW"); (3) a 2000 conviction for assault and

battery on a police officer ("ABPO") and resisting arrest; (4) a

2002 conviction for assault with a dangerous weapon (knife)

("ADW"); (5) a 2002 conviction for ABPO and ABDW; (6) a 2003

conviction for ABPO, ADW (knife), and resisting arrest; (7) a 2005

conviction for distribution of crack cocaine.3 Mouscardy argues

that, because the Massachusetts crime of ABDW can be committed

recklessly, it is not a categorically violent felony under the

ACCA. He also urges us to reconsider our prior decisions holding

that ABPO and resisting arrest are categorically violent felonies

under the ACCA. Mouscardy relies generally on our opinion in

Holloway, where we held that the Massachusetts crime of simple

assault and battery was not a categorically violent felony because

it can be committed recklessly. 630 F.3d at 262.

3 At sentencing, there was some dispute as to whether Mouscardy's 2005 conviction for distribution of crack cocaine was final. The district court declined to consider that conviction in determining whether Mouscardy qualified for the ACCA enhancement, concluding that "[i]t's irrelevant because of the huge numbers of assault and battery with a dangerous weapon [convictions] and the assault and batteries on a police officer."

-19-

The law of the circuit doctrine forecloses Mouscardy's

challenge. Pursuant to that doctrine, we are "bound by a prior

panel decision, absent any intervening authority." United States

v. Grupee, 682 F.3d 143 , 149 (1st Cir. 2012). In United States v.

Hart -- a case decided after Holloway -- we held that a

Massachusetts conviction for ABDW categorically applies as a

predicate offense under 18 U.S.C. § 924(e)(2)(B)(ii). 674 F.3d at

44, cert. denied, 133 S. Ct. 228 (2012). In United States v.

Dancy, another case decided post-Holloway, we held that the

Massachusetts crime of ABPO is categorically a violent felony under

the ACCA. 640 F.3d at 468-70. Because Mouscardy has failed to

identify any supervening authority that would cast doubt on the

validity of Hart or Dancy, his challenges to the designation of his

ABDW and ABPO convictions as valid ACCA predicates are barred by

the law of the circuit doctrine.

Considering only his ABDW and ABPO convictions, Mouscardy

has four qualifying predicates, one more than is required for an

ACCA enhancement. We therefore conclude that the district court

did not err in sentencing Mouscardy as an armed career criminal.4

4 Mouscardy devotes a short paragraph in his brief to the argument that the residual clause of the Armed Career Criminal Act should be considered void for vagueness. This argument is plainly foreclosed by Supreme Court precedent and our own. See Sykes v. United States, 131 S. Ct. 2267 , 2277 (2011); James v. United States, 550 U.S. 192 , 210 n.6 (2007); United States v. Hart, 674 F.3d 33 , 41 n.3 (1st Cir. 2012).

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IV.

For the foregoing reasons, we affirm Mouscardy's

conviction and sentence.

So ordered.

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