United States District Court, D. Rhode Island
J. McConnell, Jr. United States District Judge
Court sentenced Thomas Flannery to 151 months in prison after
calculating a Guidelines range of 151-188 months. The Court
determined that Mr. Flannery qualified as a career offender
based in part on three prior convictions for Massachusetts
Armed Robbery and two prior convictions for Massachusetts
Unarmed Robbery. In Johnson v. United States (Johnson
II), 135 S.Ct. 2551 (2015), the Supreme Court struck
down the residual clause as unconstitutionally vague, and in
Welch v. United States, 136 S.Ct. 1257 (2016), the
Supreme Court made the Johnson ruling retroactive on
collateral review. Following the Johnson II ruling,
Mr. Flannery filed a petition for habeas relief pursuant to
28 USC § 2255 and argues that his prior offenses for
Armed Robbery and Unarmed Robbery in violation of
Massachusetts law cannot satisfy the force clause and,
therefore, no longer qualify as predicate offenses. The Court
agrees with Mr. Flannery and the holdings of the Ninth
Circuit, United States v. Parnell, 818 F.3d 974 (9th
Cir. 2016), and the District of Massachusetts, United
States v. Dubose, No. CR 04-10291-RGS, 2016 WL 7365166
(D. Mass. Dec. 19, 2016).
first question is whether Massachusetts Armed and Unarmed
Robbery are divisible or indivisible-that is, whether
"use of force" and "threatened force" are
means or elements. The Government does not advance an
argument that the offenses are divisible, and the Court does
not find that they are. A distinguishing feature between
elements and means is the need for a jury finding:
"[J]urors must unanimously find that the government
proved all 'elements' of an offense beyond a
reasonable doubt to convict a defendant." United
States v. Tavares, 843 F.3d 1, 15 (1st Cir. 2016). Under
Massachusetts law, a jury does not need to make a finding for
the force component-whether the defendant used force or
threatened force. See Commonwealth v. Santos, 797
N.E.2d 1191, 1194-95 (Ma. 2003) ("The verdict slip for
the armed robbery indictment was in the form of a general
verdict, and thus did not specify . . . which form of
'assault' had been used to perpetrate the armed
robbery. The judge committed no error."), overruled
on other grounds by Commonwealth v. Anderson, 963 N.E.2d
704 (Ma. 2012). Therefore, the Court finds the offenses
indivisible and applies the categorical approach.
defines unarmed robbery as a larceny with the added element
of "force and violence" or "assault and
putting in fear." Mass. Gen. Laws Ch. 265, § 19(b);
see also Commonwealth v. Sheppard, 537 N.E.2d 583,
585 (Ma. 1989) C'[T]he exertion of force, actual or
constructive, remains the principal distinguishing
characteristic between a robbery and the underlying
larceny."). That is, an unarmed robbery requires the use
of force or threat of force. An armed robbery adds the
element of "being armed with a dangerous weapon."
Mass. Gen. Laws Ch. 265, § 17.
turn to a red herring-the dangerous weapon requirement. In
considering whether Massachusetts Assault with a Dangerous
Weapon (ADW) qualifies as a "violent felony, " the
First Circuit examined the effect a "dangerous
weapon" has on the force clause calculus. United
States v. Whindleton, 797 F.3d 105 (1st Cir. 2015).
While the Whindleton Court held that the dangerous
weapon element elevated the force of a simple assault to a
level that comports with Johnson I, the assault in
Massachusetts ADW must be committed by "means
of a dangerous weapon." Id., at 112 (emphasis
added); see also United States v. Fields, 823 F.3d
20, 35 (1st Cir. 2016) (applying the Whindleton
holding to the definition of "crime of violence").
In stark contrast, the dangerous weapon in Massachusetts
Armed Robbery need not even be displayed. Iting v.
MacEachern, 665 F.3d 247, 253 (1st Cir. 2011); see
also Commonwealth v. Chapman, 186 N.E.2d 818, 821 (Ma.
1962) (finding no error with the instruction, "[I]t
isn't necessary in order to find the defendant guilty of
this offense, to find that the gun, the weapon, played any
part-direct part in this operation"). As such, the mere
possession of a secreted dangerous weapon during the
commission of a robbery can and is distinguished from the use
of a dangerous weapon during an assault.
whether unarmed and armed robbery "has as an element the
use, attempted use, or threatened use of physical force
against the person of another, " U.S.S.G. §
4B1.2(a)(1), may seem like a straightforward answer because,
after all, the elements require proof of force or threat
offeree. But an examination of Massachusetts law and
"lawyerly gobbledygook" instructs us otherwise.
Dubose, 2016 WL 7365166, at *3. The Massachusetts
Supreme Judicial Court has defined use of force in a
negligible way such that purse snatching suffices.
Commonwealth v. Jones, 283 N.E.2d 840, 844-45 (Ma.
1972). The force exerted in the removal of a purse from a
victim's person, though, simply does not equate to force
"capable of causing physical pain or injury, to another
person." Johnson v. United States (Johnson I),
559 U.S. 133, 140 (2010).
the impetuous reader of First Circuit precedent may believe
that this Court's finding is in contravention to
United States v. Luna, 649 F.3d 91 (1st Cir. 2011).
To be sure, Luna stated that "both versions [of
MA Armed Robbery] are proper ACCA predicates."
Id., at 108 n.18. The issue briefed and analyzed by
the First Circuit, however, only concerned the "threat
of force" component, and any verbiage concerning the
"use of force" component was dicta. The defendant in
Luna did not argue that the "use of force"
component fails to satisfy the force clause, and. the First
Circuit did not consider Massachusetts case
At any rate, Luna was decided prior to Descamps
v. United States, 133 S.Ct. 2276 (2013), and subsequent
First Circuit cases, such as United States v. Fish,
758 F.3d 1 (1st Cir. 2014), which held that courts must look
to the "most innocent conduct" criminalized under a
statute when employing the categorical method. More
persuasively, but once again dictum, the First Circuit
rejected the notion that a robbery statute that may be
satisfied by "the slightest use of force" has the
requisite force under Johnson I. United States v.
Castro-Vazquez, 802 F.3d 28, 37 (1st Cir. 2015).
Accordingly, Luna does not hogtie the Court's
analysis of force.
Court finds that Massachusetts Armed Robbery and Unarmed
Robbery are indivisible and that the offenses sweep too
broadly in covering conduct that does not satisfy the force
clause. Accordingly, Massachusetts Armed Robbery and Unarmed
Robbery do not qualify as crimes of violence. After striking
Mr. Flannery's convictions for Massachusetts Armed
Robbery and Unarmed Robbery, he does not have the requisite
offenses for the career-offender classification. For this
reason, the Court intends to vacate Mr. Flannery's
sentence and resentence him in accordance with today's
 The Government apparently concedes
this point in other briefing. Brief for Appellee at 27,
United States v. Edwards, No. 15-1874 (1st Cir. Aug.
8, 2016) (concluding that "the two crimes (armed and
unarmed robbery) are identical for purposes of the force
clause under the ACCA").
 The challenge to Massachusetts Armed
Robbery came in the wake of Johnson I and tested the
bounds of the force requirement as applied to threats of
force. Brief for Appellant at 64, United States v.
Luna,649 F.3d 91 (1st Cir. 2011) (No. 09-2263)
("The elements of armed robbery can be met where the
defendant, while armed, 'by threatening words or
gestures, puts ...