FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]
T. Quinlivan, Assistant U.S. Attorney, with whom William D.
Weinreb, Acting U.S. Attorney, was on brief, for appellant.
N. Marx, with whom Fick & Marx LLP was on brief, for
Torruella, Lynch, and Kayatta, Circuit Judges.
Travis Windley pleaded guilty to being a felon in possession
of a firearm under 18 U.S.C. § 922(g)(1), the district
court sentenced him to ninety-six months' imprisonment,
over the government's objection. The sole issue raised in
this ensuing appeal by the government is whether the district
court erred in determining that Windley's prior
convictions in Massachusetts state court for assault and
battery with a dangerous weapon (ABDW) were not convictions
for a "violent felony" under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). That
determination makes a difference because two of Windley's
other convictions do qualify as violent felonies under
ACCA; hence, even one more conviction for a
violent felony would have triggered a fifteen-year mandatory
minimum sentence. Id. § 924(e)(1). In light of
our recent opinion in Bennett v. United States, No.
16-2039, slip op. at 54 (1st Cir. July 5, 2017),
ABDW comes in two forms: an intentional form and a reckless
form. See United States v. Tavares, 843 F.3d 1, 12
(1st Cir. 2016), reh'g denied, 849 F.3d 529 (1st
Cir. 2017). The parties tell us that Shepard
documents relating to Windley's ABDW convictions no
longer exist, so those convictions qualify as convictions for
violent felonies only if both the intentional and the
reckless forms of ABDW are violent felonies, see United
States v. Faust, 853 F.3d 39, 51-53 (1st Cir. 2017)
(citing, inter alia, Shepard v. United States, 544
U.S. 13 (2005)). In the wake of the Supreme Court's
ruling that ACCA's residual clause is unconstitutionally
vague, Johnson v. United States, 135 S.Ct. 2551,
2557 (2015), we limit our inquiry to ACCA's so-called
"force clause, " which defines as a violent felony
any crime that "has as an element the use, attempted
use, or threatened use of physical force against the person
of another." 18 U.S.C. § 924(e)(2)(B)(i). We have
already held that intentional ABDW satisfies the identically
worded force clause in the definition of a "crime of
violence" in the sentencing guidelines. See
Tavares, 843 F.3d at 12-13. Nevertheless, if reckless
ABDW is not a violent felony, we cannot conclude that Windley
was convicted of a violent felony. So framed, the pivotal
question is whether Massachusetts reckless ABDW, given its
mens rea requirement, has as an element the "use . . .
of physical force against the person of another." 18
U.S.C. § 924(e)(2)(B)(i).
held that the Maine offense of aggravated assault does not
satisfy the force clause because it can be committed with a
mens rea of recklessness. Bennett, slip op. at 7-8,
54. Under the Maine criminal code, which is based on the
Model Penal Code, a person behaves recklessly when that
person "consciously disregards a risk that the
person's conduct will cause" a result that is an
element of the crime. Me. Stat. tit. 17-A, § 35(3)(A);
see Bennett, slip op. at 7-8. A conviction for
aggravated assault in Maine, therefore, only requires proof
that the defendant consciously disregarded a risk of causing
bodily injury. See Me. Stat. tit. 17-A,
§§ 35(3)(A), 208; see also Bennett, slip
op. at 13. In Bennett, we reasoned that there is
grievous ambiguity as to whether the "use . . . of
physical force against the person of another" includes
the reckless version of Maine aggravated assault, and that
the rule of lenity therefore required us to conclude that it
does not. Bennett, slip op. at 3- 4, 40-42, 52-54.
mens rea required for Massachusetts reckless ABDW provides no
better fit with ACCA's requirement that force be used
against the person of another. Cf. United States v.
Fish, 758 F.3d 1, 9-10 (1st Cir. 2014). While a
conviction for Massachusetts ABDW requires that the wanton or
reckless act be committed intentionally, Commonwealth v.
Burno, 487 N.E.2d 1366, 1368-69 (Mass. 1986), it does
not require that the defendant intend to cause injury,
see Commonwealth v. Welansky, 55 N.E.2d 902, 910-12
(Mass. 1944); Commonwealth v. Correia, 737 N.E.2d
1264, 1266-67 (Mass. App. Ct. 2000); see also Fish,
758 F.3d at 10, or even be aware of the risk of serious
injury that any reasonable person would perceive, see
Welansky, 55 N.E.2d at 910; Commonwealth v.
Hall, No. 13-P-0021, 2014 WL 1235920, at *1 & n.1
(Mass. App. Ct. Mar. 27, 2014) (unpublished disposition);
Commonwealth v. Cadoff, No. 00-P-0218, 2002 WL
407972, at *1 (Mass. App. Ct. Mar. 15, 2002) (unpublished
disposition); see also Bennett, slip op. at 26 n.10.
Like Maine's aggravated assault offense, see,
e.g., State v. Martin, 916 A.2d 961, 965 (Me.
2007); State v. Pineo, 798 A.2d 1093, 1097-98 (Me.
2002), reckless driving that results in a non-trifling injury
has led to convictions for Massachusetts reckless ABDW,
see, e.g., Commonwealth v. Green, No.
02-P-0678, 2003 WL 22399532 at *1, *3-4 (Mass. App. Ct. Oct.
21, 2003) (unpublished disposition); Cadoff, 2002 WL
407972, at *1; Commonwealth v. Subenko, No.
99-P-1404, 2001 WL 1473887, at *1, *4 (Mass. App. Ct. Nov.
20, 2001) (unpublished disposition); see also
Commonwealth v. Sostilio, 89 N.E.2d 510, 511-12 (Mass.
1949) (upholding a conviction for reckless manslaughter,
which has the same mens rea requirement as reckless ABDW, in
a reckless driving case). These are the types of cases that
give rise to grievous ambiguity as to whether the use of
physical force against the person of another includes the
reckless causation of bodily injury. See Bennett,
slip op. at 40-43. Thus, following and adopting the sound
reasoning of Bennett, we conclude that Massachusetts
reckless ABDW is not a violent felony under the force clause.
foregoing reasons, we affirm Windley's sentence.
 Both convictions were for
Massachusetts assault with a dangerous weapon. See United
States v. Whindleton, 797 F.3d 105, 116 (1st Cir. 2015),
cert. dismissed, 137 S.Ct. 23 (2016), and cert.
denied, 137 S.Ct. 179 (2016).
 We recognize that questions have
recently arisen as to whether the opinion in Bennett
should be withdrawn in light of the death of the petitioner
in that case. See Motion for Withdrawal of
Court's Opinion, Bennett v. United States, No.
16-2039 (1st Cir. July 13, 2017). Nevertheless, we cite the
opinion here because this panel, after careful consideration,
reached the same conclusion about whether reckless offenses
qualify as violent felonies under the force clause. Thus, by
citing Benn ...