APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Mark L. Wolf, U.S. District Judge.
Joseph A. Franco for appellant.
Carmen M. Ortiz, United States Attorney, and Mark T. Quinlivan, Assistant United States Attorney, for appellee.
Before Lynch, Chief Judge, Howard and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Robert Anderson appeals his sentence, imposed pursuant to the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e), following his guilty plea on two counts of possession of a firearm and ammunition
by a convicted felon, id. § 922(g)(1). The correctness of the district court's application of ACCA turns on whether at least three crimes for which Anderson was previously convicted were " violent felonies" as that term is defined in ACCA's residual clause. See id. § 924(e)(1). The district court determined that four prior convictions qualified as violent felonies: (1) a 2003 conviction for assault and battery on a police officer; (2) a 2004 conviction for assault and battery; (3) a 2004 conviction for assault to maim; and (4) a 2006 conviction for assault and battery on a court officer. Based on this determination, the district court sentenced Anderson to 180 months' imprisonment, the mandatory minimum for an individual deemed an armed career criminal under ACCA. Anderson appealed, challenging the district court's classification of his 2004 conviction for assault and battery and his 2006 conviction for assault and battery on a court officer as violent felonies.
While this appeal was pending, the U.S. Supreme Court decided Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). After we requested supplemental briefing on the effect of that decision, the government disclaimed any continuing reliance on Anderson's 2004 conviction for assault and battery as a violent felony under ACCA. Our review of Anderson's sentence therefore turns on our assessment of the arguments he makes for finding that his 2006 conviction for assault and battery on a court officer was not a conviction for a violent felony under ACCA. For the following reasons, we reject those arguments and affirm Anderson's sentence.
On January 20, 2010, a cooperating witness working with the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (" ATF" ) purchased a.380 Beretta pistol and 12 rounds of.380 caliber ammunition from Anderson for $375. Later, on March 23, 2010, the same cooperating witness purchased a 9 millimeter Ruger pistol and 12 rounds of 9 millimeter caliber ammunition from Anderson for $750. On May 6, 2010, Anderson was arrested on a separate charge and, after waiving his Miranda rights, admitted to having sold the firearms and ammunition. He was charged with two counts of possession of a firearm and ammunition by a convicted felon, see 18 U.S.C. § 922(g)(1), and, on June 5, 2012, pled guilty on both counts.
At sentencing, Anderson raised two arguments in support of the contention that the (now-pivotal) 2006 conviction for assault and battery on a court officer was not
a violent felony under ACCA. First, he argued that the crime of assault and battery on a court officer poses a " substantially lesser degree of risk," and is not similar in kind, to the offenses enumerated in ACCA. Cf. Begay v. United States, 553 U.S. 137, 139-48, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). ...