FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]
Anthony E. Fuller, with whom Alexandra G. Watson and Hogan
Lovells U.S. LLP were on brief, for appellant.
T. Quinlivan, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
Howard, Chief Judge, Selya and Barron, Circuit Judges.
appeal resembles a play in two acts. The first act deals with
whether the district court erred in refusing to order a
pretrial hearing to test the sufficiency of the probable
cause allegations undergirding an arrest warrant. The second
act deals with whether the district court erred in
classifying the defendant as an armed career criminal and
sentencing him under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e). As the final curtain descends, we find
it manifest that the district court erred in neither respect.
Accordingly, we affirm the defendant's conviction and
rehearse the relevant facts, which are largely undisputed
(even though the parties fiercely contest the inferences to
be drawn from those facts). In the early afternoon of
Saturday, August 8, 2015, Jillian Poeira and her mother Ana
Poeira walked into a police station in New Bedford,
Massachusetts, to file a report implicating
defendant-appellant John A. Barbosa. Jillian and the
defendant had lived together (with Jillian's two children
from a previous relationship) before parting ways in January
of 2015. Following the break-up, Jillian and her children
moved in with Jillian's parents.
Jillian and Ana arrived at the police station on August 8,
they spoke to a New Bedford police officer, Gregory Sirois,
and described certain events that had transpired earlier that
morning. According to the application for a criminal
complaint (the Application), completed and signed that
afternoon by Officer Sirois,  the two women reported that,
around 7:00 a.m., the defendant appeared unexpectedly at
their home. Ana answered the door, and the defendant pushed
his way inside and demanded to speak to Jillian. Officer
Sirois wrote in the Application that "Ana Poeira pushed
[the defendant] against the wall and held him there and as
she did he raised a black firearm into the air and pointed it
[at] both females," threatening to kill everyone in the
house. The Application went on to relate that the altercation
ended after Ana "managed to push [the defendant] back
out the door." The defendant then departed.
Sirois asked the women why they had waited nearly six hours
to report the incident. Jillian responded that she was
scared, and Ana added that she had a doctor's appointment
that morning. The officer then checked for any outstanding
warrants concerning either Jillian or the defendant but found
none. He did, however, find an extensive Board of Probation
record for the defendant, which revealed a number of
"firearms charges and other violent crimes."
Officer Sirois proceeded to assist Jillian in preparing a
complaint for an emergency restraining order against the
defendant. In support, Jillian wrote and signed an affidavit
(the text of which was not included verbatim in the
Application), in which she described the August 8 incident in
her own words. The affidavit stated that the defendant had
arrived at the house between 8:00 a.m. and 9:00 a.m. When the
defendant knocked and asked to speak with Jillian, Ana opened
the door only a crack and told the defendant that Jillian had
nothing to say to him. According to Jillian's affidavit,
the defendant pushed his way into the house as Ana tried to
hold him back; Jillian's four-year-old son yelled that
the defendant had a gun; and Jillian - who had been about to
call 911 - dropped the phone and ran to help her mother push
the defendant out the door. As the defendant left, he told
Jillian that if she called the police, he would kill everyone
in the house.
told Officer Sirois that the defendant drove a gray Volvo and
frequented the New Bedford public library. The officer
confirmed that a gray Volvo was registered in the
defendant's name and put out a "be on the look
out" notice for the car.
days later, detectives from the New Bedford Police Department
followed up on the complaint against the defendant.
confirmed that an arrest warrant had been issued on a charge
of armed home invasion - a warrant premised on the
Application. See Mass. Gen. Laws ch. 265, §
18C. That afternoon, the police executed the arrest warrant
at the public library and took the defendant into custody.
During the arrest, they seized a bag containing a firearm and
November 12, 2015, a federal grand jury sitting in the
District of Massachusetts returned a single-count indictment
charging the defendant with being a felon in possession of a
firearm and ammunition. See 18 U.S.C. §
922(g)(1). In due season, the defendant moved to suppress the
firearm and ammunition found in his possession. He alleged,
inter alia, that the arrest warrant had been issued without a
sufficient showing of probable cause and that the firearm and
ammunition were fruits of the allegedly unconstitutional
warrant. The government opposed the motion, and the district
court denied it. See United States v.
Barbosa, 2016 WL 3976559, at *1 (D. Mass. July 22,
2016). Undaunted, the defendant moved for a Franks
hearing, see Franks v. Delaware,
438 U.S. 154, 155-56 (1978), seeking an opportunity to
challenge the underpinnings of the arrest warrant in a
pretrial proceeding. The district court denied this motion as
well. See United States v.
Barbosa, 2016 WL 6609174, at *1 (D. Mass. Nov. 7,
December 19, 2016, the defendant entered a conditional guilty
plea, see Fed. R. Crim. P. 11(a)(2), reserving his
right to appeal both the district court's denial of his
motion to suppress and its denial of his motion for a
Franks hearing. Following the defendant's guilty
plea, the probation department prepared a presentence
investigation report recommending that the defendant be
sentenced as an armed career criminal under the ACCA. In
support, the probation department represented that the
defendant, in the idiom of the ACCA, had at least three prior
convictions for "violent felon[ies]" and/or
"serious drug offense[s]." 18 U.S.C. § 924(e).
The probation department identified four Massachusetts
convictions - a 1993 conviction for possession with intent to
distribute a controlled substance; a 1995 conviction for
assault with a dangerous weapon (ADW); a 2000 conviction for
possession with intent to distribute a controlled substance;
and a 2007 conviction for armed assault with intent to murder
(AAIM) - as potential predicate offenses. Classification as
an armed career criminal had potentially unattractive
consequences for the defendant: the ACCA requires a mandatory
minimum fifteen-year term of incarceration for persons who
have at least three qualifying convictions for predicate
offenses. See id. § 924(e)(1).
sentencing, the district court determined that the
defendant's 1993, 1995, and 2000 convictions comprised
convictions for ACCA predicate offenses. Classifying the
defendant, over his objection, as an armed career criminal,
the court sentenced him to a fifteen-year term of immurement.
This timely appeal followed.
venue, the defendant, ably represented, does not directly
challenge the district court's denial of his motion to
suppress. He does challenge, though, the court's denial
of his motion for a Franks hearing. In addition, he
challenges his classification as an armed career criminal
and, thus, his sentence. We bifurcate our analysis, first
addressing the defendant's Franks claim and then
addressing his claim of sentencing error.
start with the defendant's challenge to the denial of his
motion for a Franks hearing. In reviewing such an
order, we appraise the district court's factual findings
for clear error and evaluate its legal conclusions de novo.
See United States v. Patterson,
877 F.3d 419, 424 (1st Cir. 2017); United States
v. Arias, 848 F.3d 504, 511 (1st Cir.
2017). The district court's findings of fact will be
deemed clearly erroneous if - and only if - a reviewing
court, after considering all of the evidence, "is left
with the definite and firm conviction that a mistake has been
committed." Anderson v. City of
Bessmer, 470 U.S. 564, 573 (1985) (quoting United
States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)).
Fourth Amendment provides that "no Warrants shall issue,
but upon probable cause, supported by Oath or
affirmation." U.S. Const. amend. IV. In Massachusetts,
police officers need not submit an affidavit in support of an
arrest warrant. See Burke v. Town of
Walpole, 405 F.3d 66, 78 (1st Cir. 2005) (describing
procedure). Instead, they may submit an application for a
criminal complaint, which must reduce to writing the facts
supporting probable cause. See Mass. Gen. Laws ch.
276, § 22. The ensuing arrest warrant must nonetheless
be signed by the official issuing it, see Mass. R.
Crim. P. 6(b), and that signature satisfies the Fourth
Amendment's oath or affirmation requirement, see
Burke, 405 F.3d at 78-79. Here, the arrest warrant was
initialed by a judge of the New Bedford District Court, and
the defendant has not challenged the sufficiency of the oath
or affirmation on appeal.
the oath or affirmation, the Fourth Amendment demands that an
application for an arrest warrant contain sufficient
information to allow the issuing official - whom, for ease in
exposition, we shall call "the magistrate" - to
"make a practical, common-sense decision whether, given
all the circumstances set forth in the [application] before
him . . . there is a fair probability" that a crime has
been committed. Illinois v. Gates, 462 U.S. 213, 238
(1983). An application "supporting a . . . warrant is
presumptively valid." United States v.
Gifford, 727 F.3d 92, 98 (1st Cir. 2013). Under
certain circumstances, however, a defendant may be able
"to rebut this presumption and challenge the
veracity" of the warrant application at a pretrial
hearing. United States v.
McLellan, 792 F.3d 200, 208 (1st Cir. 2015). Such a
hearing is eponymously called a Franks hearing.
See, e.g., id.; United
States v. Hicks, 575 F.3d 130, 135-36
(1st Cir. 2009).
Franks Court held that if a defendant can show, by a
preponderance of the evidence, that there were false
statements included in the warrant affidavit and that, with
the "false material set to one side, the affidavit's
remaining content is insufficient to establish probable
cause, the . . . warrant must be voided and the fruits . . .
excluded to the same extent as if probable cause was lacking
on the face of ...