United States Court of Appeals For the First Circuit

No. 21-1493

UNITED STATES OF AMERICA,

Appellee,

v.

KOURTNEY WILLIAMS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before Gelpí, Howard, and Thompson, Circuit Judges.

Jessica LaClair, with whom Law Office of Jessica LaClair was on brief, for appellant.

Noah Falk, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.

August 22, 2023 HOWARD, Circuit Judge. Defendant-appellant Kourtney

Williams appeals the sentence he received in connection with a

2014 robbery in Maine. Specifically, he contends that his base

offense level should have been lower, because: (1) the district

court mistakenly found that two of his earlier convictions for

assault with a dangerous weapon under Massachusetts law and robbery

with the use of a dangerous weapon under Maine law were "crime[s]

of violence" under U.S. Sentencing Guidelines ("USSG") §2K2.1; and

(2) the record does not in fact show that he was convicted of

robbery with the use of a dangerous weapon under Maine law.

Because our cases foreclose his first contention, and we disagree

with his second, we affirm.

I. Background

This is Williams's second appeal. See United States v.

Lara,

(1st Cir. 2020). In the present appeal, he

challenges only his sentence; therefore, we summarize the facts

relevant to that issue.

In April 2015, Williams was indicted for conspiracy to

possess with intent to distribute controlled substances,

, 841(a)(1), and 841(b)(1)(C); conspiracy to commit Hobbs

Act robbery,

(a); use of a firearm during and in

relation to a crime of violence,

(c)(1)(A)(ii); and

possession of a firearm by a felon,

(g)(1) and

924(e). In September 2016, a jury found him not guilty of - 2 - conspiracy to possess with intent to distribute controlled

substances, but guilty of the other charges.

At his first sentencing, the district court concluded

that Williams qualified as a "career offender" under USSG §4B1.1

because, as relevant here, he "ha[d] at least two prior felony

convictions" for "crime[s] of violence" as defined by §4B1.2 -

- specifically, assault with a dangerous weapon, Mass. Gen. Laws

ch. 265, § 15B(b) ("Massachusetts ADW") and robbery with the use

of a dangerous weapon, Me. Rev. Stat. Ann. tit. 17-A, §§ 651(1)(B)

and 1252(4) ("Maine RDW")1 -- and calculated his guidelines

sentencing range accordingly. Williams,

at *2-5;

§4B1.2, cmt. n.1 (cross-referencing the definition in §4B1.1).

The district court sentenced him to a total

incarcerative sentence of 184 months and mandatory supervised

release, and Williams appealed, challenging his convictions and

sentence. We affirmed his convictions, except for the one for use

of a firearm during and in relation to a crime of violence under

1Section 651(1)(B) was amended on June 8, 2017. Williams pleaded guilty to the pre-June 2017 version of § 651(1)(B), which is the version of the statute quoted herein. See United States v. Williams, No. 15-00069,

, at *3 n.1 (D. Me. Aug. 14, 2017). Section 1252(4) was also amended on July 31, 2018, and was later repealed altogether. Williams pleaded guilty to the pre- July 2018 version of § 1252(4) (if in fact he pleaded guilty to it, which Williams contests), and that version of the statute is quoted herein. See id. at *4. - 3 - § 924(c)(1)(A), and vacated and remanded the case for resentencing

in light of that determination. Lara,

.

At his resentencing, the district court concluded that

his base offense level was 26 under USSG §2K2.1(a)(1), which

applied because of his conviction for possession of a firearm by

a felon in violation of § 922(g)(1). That section provides in

relevant part for a base offense level of 26 where a defendant has

previously "sustain[ed] at least two felony convictions of . . .

a crime of violence." "Crime of violence" is in turn defined by

§4B1.2, which is part of the career offender Guidelines. See

United States v. Castro-Vasquez,

, 34 n.3 (1st Cir.

2015); USSG §2K2.1 cmt. n.1. The district court concluded,

consistent with its earlier ruling, that Williams had two previous

felony convictions for crimes of violence -- one for Massachusetts

ADW and one for Maine RDW -- and calculated his Guidelines

sentencing range on that basis. The court imposed a total prison

sentence of 140 months followed by three years of supervised

release.

II. Discussion

The only question in this appeal is whether the district

court correctly concluded that Williams had two prior felony

convictions for "crime[s] of violence." Williams contends that

Massachusetts ADW and Maine RDW are not crimes of violence, and

also that he was not in fact convicted of Maine RDW, but rather of - 4 - robbery in violation of § 651(1)(B), which the parties agree does

not qualify as a crime of violence.

Whether a prior conviction qualifies as a "crime of

violence" is a question of law that, if preserved, we review de

novo. See United States v. Almenas,

(1st Cir.

2009).2

Section 4B1.2(a) defines an offense as a "crime of

violence" if the offense is "punishable by imprisonment for a term

exceeding one year" and: "(1) has as an element the use, attempted

use, or threatened use of physical force against the person of

another," or (2) "is murder, voluntary manslaughter, kidnapping,

aggravated assault, a forcible sex offense, [or] robbery . . . ."

The first clause is often referred to as the "elements" or "force"

clause; the second is often referred to as the "enumerated" clause.

And the Supreme Court held in Johnson v. United States that

2 The government does not dispute that Williams has preserved the contentions he raises on appeal, with one exception: his contention that, because of the Supreme Court's decision in Borden v. United States, Massachusetts ADW and Maine RDW are not crimes of violence.

(2021) (plurality opinion). The Supreme Court issued its decision in Borden on June 10, 2021, which was roughly a week before Williams's re-sentencing (though after his sentencing memorandum for that proceeding had been submitted). He did not mention or raise any contentions based on Borden at his sentencing hearing. The government thus contends that such contentions should be reviewed for plain error only. For the reasons explained below, however, we need not decide whether our review is for plain error, because even under a de novo standard, our previous panel decisions bind us notwithstanding Borden. - 5 - "'physical force' means violent force -- that is, force capable of

causing physical pain or injury to another person."

,

140 (2010) (emphasis in original).

The government contends that Massachusetts ADW is a

crime of violence under the elements clause, but that Maine RDW

qualifies as a crime of violence under either clause of §4B1.2.

However, the parties treat the analysis applicable to Maine RDW as

the same under either clause, and we focus here on the elements

clause.

We apply the "categorical approach" to determine

"whether a defendant's prior conviction for a certain crime

satisfies the [elements] clause." See United States v. Starks,

(1st Cir. 2017) (examining an identical clause

under the Armed Career Criminal Act ("ACCA")).3 Under that

3 The ACCA and

both contain their own elements clauses that use similar or identical language to the elements clause of the career offender guidelines. ACCA imposes longer sentences when a defendant has "three previous convictions . . . for a violent felony," among other things.

(e)(1). As relevant here, ACCA defines a "violent felony" using language that is identical to the elements clause of §4B1.2.

in turn defines a "crime of violence" for purposes of many different statutes. See, e.g.,

(a)(2)(E)(i) (permitting the deportation of noncitizens who commit crimes of domestic violence after admission). Its elements clause uses language that is nearly identical to §4B1.2's elements clause. The only difference is that § 16(a) includes offenses that have "as an element the use, attempted use, or threatened use of physical force against the person or property of another," § 16(a) (emphasis added); §4B1.2's elements clause omits the "of property" language. Cf. Borden,

(same, as - 6 - approach, the question turns not on whether the defendant in fact

"used, attempted to use, or threatened to use violent force in

committing the crime as a matter of historical fact, but on whether

the use, attempted use, or threatened use of violent force is

required to satisfy one of the crime's elements."

Thus, a

court should consider "whether the least serious conduct for which

there is a 'realistic probability' of a charge and conviction

necessarily involves the use of violent force."

(quoting

Moncrieffe v. Holder,

(2013)).

A. Massachusetts ADW

We have previously held that Massachusetts ADW is a

"crime of violence" under the elements clause of §4B1.2 and ACCA.

United States v. Fields,

(1st Cir. 2016) (§4B1.2);

United States v. Hudson,

(1st Cir. 2016) (ACCA).

Williams's main contention as to Massachusetts ADW is that the

Supreme Court's decisions in United States v. Taylor,

(2022), and Borden undermine those previous decisions, and

that we should therefore reconsider them. The government contends

between ACCA and § 16(a)). The parties agree that we may rely on precedents interpreting the elements clauses of § 16(a) and ACCA to interpret that clause of §4B1.2. United States v. Willings,

, 58 n.2 (1st Cir. 2009) (same, as to ACCA and §4B1.2); see Borden,

(concluding that the reasoning of another case examining § 16(a)'s elements clause essentially answered a related question the Court confronted as to the elements clause of ACCA). - 7 - that we remain bound by Hudson and Fields.

Under the law of the circuit doctrine, "newly

constituted panels . . . are constrained by prior panel decisions

directly (or even closely) on point," Hudson,

(quotations omitted), absent "the occurrence of a controlling

intervening event (e.g., a Supreme Court opinion on the point; a

ruling of the circuit, sitting en banc; or a statutory overruling)

or, in extremely rare circumstances, where non-controlling but

persuasive case law suggests such a course," United States v.

Chhien,

(1st Cir. 2001).

Thus, to determine whether Borden or Taylor represents

a "controlling intervening event," it is necessary to review the

existing case law in this circuit concerning the elements clause

of §4B1.2, as well as closely analogous provisions in § 16 and

ACCA.

The first such relevant case is United States v. Fish,

in which we concluded that § 16(b) -- which defines a crime of

violence as including "any other offense that is a felony and that,

by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course

of committing the offense," § 16(b) (emphasis added) -- "does not

reach recklessness offenses."

(1st Cir. 2014).

We thus concluded that a conviction for assault and battery with

a dangerous weapon ("ABDW") under Massachusetts law did not qualify - 8 - as a "crime of violence" under § 16(b), because it can be committed

with "the intentional commission of a reckless act." Id. at 16.

We based our conclusion on the Supreme Court's decision in Leocal

v. Ashcroft, which held that the phrase "use . . . of physical

force against another" in the elements clause of § 16 -- that is,

§ 16(a) -- excluded negligence-or-less crimes because the phrase

"most naturally suggests a higher degree of intent than negligent

or merely accidental conduct."

(2004). The Court

found the same as to § 16(b), due to the same language in that

clause. Id. at 11. In Fish, we noted that several other circuits

had extended Leocal's rationale to reckless crimes under §§ 16(a)

and (b), which Leocal had not had the occasion to address, and

made the same extension as to § 16(b).

, 11 n.4.4

Next, in United States v. Whindleton,

(1st

Cir. 2015), we held that Massachusetts ADW is a "crime of violence"

under ACCA's elements clause.

. We had previously

concluded that simple assault under Massachusetts law is not a

"crime of violence" under that clause because it can be

accomplished by an attempted or threatened offensive touching and

thus does not require "violent force" as defined by Johnson -

- that is, "force capable of causing physical pain or injury to

4 Leocal "d[id] not deal . . . with an attempted or threatened use of force" -- only "use of force." Leocal,

(emphasis in original). - 9 - another person."

. Nevertheless, we concluded that

Massachusetts ADW required such force.

. We started by

noting the elements of Massachusetts ADW:

Massachusetts common law recognizes two theories of assault: attempted battery and threatened battery. Battery, in turn, has been defined as harmful or offensive touching. As such, the crime of simple assault has been held to encompass attempted or threatened touching if offensive. The crime of ADW adds [only] one additional element, namely, that the assault was perpetrated by means of a dangerous weapon.

(cleaned up). We further explained that under

Massachusetts law, a dangerous weapon "consists of

instrumentalities designed and constructed to produce death or

great bodily harm" or that "as used by the defendant, are capable

of producing serious bodily harm."

(cleaned up). Thus,

we concluded, "the element of a dangerous weapon imports the

'violent force' required by Johnson" because "the harm threatened

by an assault is far more violent than offensive touching when

committed with a weapon that is designed to produce or used in a

way that is capable of producing serious bodily harm or death."

Finally, the following year, in Hudson, we reaffirmed

that Massachusetts ADW is a "crime of violence" under the elements

clause of ACCA, rejecting a contention that it lacks the requisite

mens rea to qualify. 823 F.3d at 16-18. We noted that Fish had

- 10 - found that "section 16(b) does not reach recklessness offenses,"

and that, although Fish and Leocal dealt only with § 16, "[t]he

Supreme Court has noted that section 16 is 'very similar' to

[ACCA's elements clause]"; on that basis, we "assume[d] without

deciding that a similar bridge c[ould] be built between the mens

rea requirements of the two sections." Hudson,

, 16

n.7 (citations omitted). But we concluded that, under

Massachusetts law, "an ADW conviction requires that the use or

threat of physical [violent] force be intentional" and thus that

"a Massachusetts ADW conviction meets both the physical force and

mens rea requirements necessary to qualify as a predicate offense

under . . . ACCA's [elements] clause."

. We also

clarified that Massachusetts ADW requires proof of "specific

intent," notwithstanding the defendant's arguments to the

contrary.

, 17 n.8.

Williams contends that Taylor and Borden undermine

Hudson (and Fields, because it relied on Hudson's reasoning). We

address each contention in turn.

i. Taylor

As to Taylor, Williams contends that the Supreme Court's

construction of the meaning of "threatened use of force" in Taylor

undermined our conclusion that Massachusetts ADW is a crime of

violence.

. Taylor held that attempted Hobbs

Act robbery does not qualify as a "crime of violence" under 18 - 11 - U.S.C. § 924(c), which defines a substantive crime using in part

identical language to the elements clause of §4B1.2. Id. at 2020,

2025-26. In reaching that conclusion, the Court determined that

"threatened use" of force in the elements clause of § 924(c) means

"[a] communicated intent to inflict physical or other harm on [a]

person" as opposed to simply "an abstract risk to community peace

and order."

(first alteration in original).

But that determination is not at odds with our reasoning

in Hudson. The definition of "threatened use of physical force"

was not at issue in Hudson. Moreover, as we explained in that

decision, under the threatened-battery variant of Massachusetts

ADW, "the Commonwealth must show that 'the defendant intended to

place the victim in fear of an imminent battery' with a dangerous

weapon." 823 F.3d at 17 (quoting Commonwealth v. Porro,

(Mass. 2010)). It must also show that the victim

perceived that threat. Whindleton,

n.8.

Accordingly, Taylor's requirement that "threatened use" of force

be a "communicated" threat does not undermine Hudson.

Williams resists that conclusion by pointing to our

decision in United States v. Delgado-Sánchez, which he contends

adopted a definition of threatened use of force as an "abstract

risk to community peace and order." In Delgado-Sánchez, we

concluded that the district court's finding that intentionally

pointing a firearm at another was a crime of violence under the - 12 - elements clause of §4B1.2 was not plain error.

, 10-

11 (1st Cir. 2017). We noted that if "threatened use of physical

force" meant "communicat[ing] intent to inflict harm," then

pointing a firearm at a person without that person's knowledge,

which was "arguably" a method of committing the offense at issue,

would not qualify as a crime of violence.

(alteration

original). We further noted, however, that one might also read

"threat" as a "thing that might well cause harm" and that the

defendant had pointed to no precedent precluding such a definition.

Thus, we concluded, the district court's error, if it made

one, was by no means clear or obvious and we did not need to

determine which definition controlled.

.

Taylor forecloses the latter definition of "threatened

use of physical force" discussed in Delgado-Sánchez. But (1) our

comments were made on review for plain error, and thus had limited

precedential effect; and (2) the threatened-battery variant of

Massachusetts ADW requires that the defendant intend to place the

victim in fear of a battery and that the victim perceive that

threat; it thus clearly meets the "communicated threat"

requirement. See Whindleton,

n.8. Put

differently, Hudson did not rely on a definition of "threat" as a

"thing that might well cause harm" to find that Massachusetts ADW

is a crime of violence.

ii. Borden - 13 - Nor does Borden undermine our holding in Hudson.

Williams contends that (1) after Borden, to qualify as a "crime of

violence" under the elements clause, an offense must require that

offenders intend to use or intend to threaten to use, physical

(violent) force against another -- that is, the offender must

specifically intend the degree of violent force required by §4B1.2;

and (2) Massachusetts ADW does not always meet that requirement.

But whatever the merits of those two contentions, they

do not follow from Borden. In Borden, the Supreme Court "reach[ed]

the question . . . reserved" in Leocal, and confirmed that a

criminal offense is not a violent felony under ACCA's elements

clause if it requires "only a mens rea of recklessness."

. Four justices reached that result because

they determined that "the 'use' phrase, as modified by the

'against' phrase . . . excludes reckless conduct."

at 1829

n.6. Justice Thomas concurred in the judgment, but wrote

separately to explain that, in his view, the "'use' phrase alone

accomplish[ed] that result." Id.; see

(Thomas, J.,

concurring). Thus, there were "five" votes "to answer the question

presented" -- that is, whether the "elements clause exclude[s]

reckless conduct."

at 1829 n.6 (explaining the "line-up" of

Borden).

But, by the time that Hudson was decided, Fish had

already answered in the affirmative the question "reserved" in - 14 - Leocal that Borden answered. See

; Fish,

. And Hudson rejected that Massachusetts ADW failed to meet

Leocal's and Fish's intent requirements because it concluded that

"an ADW conviction requires that the use or threat of physical

[violent] force be intentional." Hudson,

. Thus,

Borden in no way undermined Hudson's conclusion -- it merely

confirmed that a premise underlying it is correct (that, if we had

found that Massachusetts ADW included reckless crimes, we could

not have found that it qualifies as a crime of violence).

Williams next contends that Hudson's conclusion that "a

[Massachusetts] ADW conviction requires that the use or threat of

physical force be intentional,"

, does not always hold

because Massachusetts ADW requires only that a defendant intend or

intend to threaten a mere touching, and the dangerousness of the

weapon is an objective measurement not made from the perspective

of the defendant, see Commonwealth v. Powell,

(Mass. 2001) (explaining that dangerous weapons include

"items that are used or displayed in a way such that they

reasonably appear capable of causing serious injury or death" even

if "on closer inspection" they are "incapable" of doing so).

Therefore, his theory goes, a defendant could be convicted of

Massachusetts ADW where the use or threat of violent force is

unintentional because he only intends to use or threaten use of

non-violent force (here, an offensive touching) with an object - 15 - that appears non-dangerous from his perspective, but that

nevertheless appears objectively dangerous in the eyes of the

victim. Taking an attempted use of force as an example, Williams

offers the example of a defendant who, on Halloween, chases after

a stranger with a Styrofoam knife intending to poke him with it,

thinking that the stranger will see that it is merely Styrofoam,5

but not realizing that due to lighting (or some other circumstance)

it objectively appears like a real knife to the stranger.

That example rests on the premise that this circuit and

others have been mistaken in concluding that "the intent and force

requirements outlined in Leocal and [Johnson] are examined

separately." Lassend v. United States,

(1st

Cir. 2018) (alteration in original) (quoting Stuckey v. United

States,

(2d Cir. 2017)). For example, in Lassend,

we joined the Second Circuit in determining that a conviction for

first-degree robbery under subsection (4) of New York Penal Law §

160.15 qualified as a "violent felony" under ACCA's elements

clause. Id. at 118. To prove that crime, the state is required

We have added this clause to Williams's hypothetical for 5

clarity, because if the defendant had wanted the stranger to believe it was a real knife and feel threatened by it, he plainly would have intended to threaten to use physical force under settled law. See, e.g., Taylor,

(noting as an example of a threatened use of violent force someone who gives a note -- "[y]our money or your life" -- to a cashier as a bluff to get them to submit to his demands). - 16 - to show that the defendant intended a "forcible taking," and, in

addition, that he or an accomplice, "[d]isplay[ed] what appear[ed]

to be a . . . firearm." Stuckey,

. The defendant

in Lassend contended that, because a defendant could be convicted

under subsection (4) where he himself did not commit or intend to

commit -- rather, his accomplice did -- the aggravated conduct

that qualifies as "violent force," and thus, did not "intend the

use of violent force," subsection (4) could not be a crime of

violence according to Leocal and Johnson. Lassend,

. But we rejected that premise, determining that the

intentional forcible taking satisfied Leocal's mens rea

requirement, while Johnson "separately" required that the crime

involve violent force, which the display of a firearm in the course

of a robbery by an accomplice satisfied.

. We

reasoned in part that such an interpretation of Leocal and Johnson

comported with traditional "accomplice-liability principles."

Lassend,

.

To the extent that Hudson was premised on the distinction

between Leocal and Johnson discussed in Lassend -- and there is no

suggestion in the decision that it was -- Borden does not speak to

that relationship. Again, Borden merely answers the question,

"reserved in . . . Leocal" that "the elements clause exclude[s]

reckless conduct." Borden,

, 1829 n.6. The

relationship between Leocal and Johnson thus remains an open - 17 - question (and in this circuit, we will continue to follow Lassend

until instructed otherwise).

In summary, because Williams, through his example, is

merely contending that Hudson (and other precedents of our court)

are wrong, and there has not been an intervening change of law

that undermines it, we need not (and cannot) decide the merits of

that contention here.6 Accordingly, we conclude that Williams's

Massachusetts ADW conviction qualified as a crime of violence under

§4B1.2.

B. Maine RDW

i. Threshold Issues

As an initial matter, the parties dispute what exactly

Williams was convicted of in the Maine proceedings. Williams

contends that he was not convicted of Maine RDW, as the government

contends, but rather of robbery in violation of § 651(1)(B), which

the parties agree is not a crime of violence. He also contends

that it was impermissible for the court to look to his plea

colloquy in the Maine proceedings to determine his crime of

6 Williams also makes contentions as to why Hudson was wrong that are seemingly based in Massachusetts decisional law. But all of the cases he relies on predate our decision in Hudson, or do not represent a relevant change of law. See San Juan Cable LLC v. P.R. Tel. Co.,

(1st Cir. 2010) (noting that exceptions to the law of the circuit doctrine only come into play, if at all, because of persuasive or controlling authority postdating the relevant panel decision). - 18 - conviction.

The applicable version of § 1252(4), since repealed,

states that "[i]f the State pleads and proves that a Class B, C,

D or E crime was committed with the use of a dangerous weapon then

the sentencing class for such crime is one class higher than it

would otherwise be."

The applicable version of § 651(1) reads in relevant

part as follows:

1. A person is guilty of robbery if the person commits or attempts to commit theft and at the time of the person's actions . . . B. The actor threatens to use force against any person present with the intent: (1) To prevent or overcome resistance to the taking of the property, or to the retention of the property immediately after the taking; or (2) To compel the person in control of the property to give it up or to engage in other conduct that aids in the taking or carrying away of the property. Violation of this paragraph is a Class B crime; . . . E. The actor is armed with a dangerous weapon in the course of a robbery as defined in [paragraph B, among others] or knows that the accomplice is so armed. Violation of this paragraph is a Class A crime.

Williams was originally indicted for violating

§ 651(1)(E) and Me. Rev. Stat. Ann. tit. 17-A, § 1252(5). Section

1252(5), since repealed, sets a mandatory minimum sentence of 4

years for a conviction of a Class A crime with the use of a firearm

against a person. However, the indictment was then amended to - 19 - "delete" language from the robbery count indicating that "Williams

or an accomplice to his knowledge was armed with a firearm in the

course of the robbery." The amendment stated that Williams "now

stands charged with" "robbery, Class B, § 651(B)(1) [a statute

which does not exist]." That same deletion was made to the other

charges in the indictment, except that for those charges, "with

use of a dangerous weapon" was also added. At his plea hearing,

the district court stated the following to Williams:

In Count, um, 2 which is Robbery, Class B, the State would have to prove that on or about January 14, 2013 in Auburn, that you used a dangerous weapon and committed or attempted to commit theft from [the victim] and at that time you threatened to use force against [the victim], who was present, with the intent to prevent or overcome resistance to the [] taking of property, or the retention of the property immediately after the taking, or to compel the person in control of the property to give it up or to engage in other conduct which aided in the taking and carrying away of that property. Do you understand that I have to prove each and every element of that charge beyond a reasonable doubt?

Defendant: Yes, Ma'am.

The court also later asked the prosecutor to "tell [it] what

evidence would be presented if this matter went to trial," which

the prosecutor did.

The judgment and commitment in turn describes the

offense as "[r]obbery (with a dangerous weapon)" in violation of

§ 651(1)(E). Everything is typed, except that someone has crossed

- 20 - out the "A" next to the "Class" corresponding to the robbery

charge, and handwritten in its place "B."

The district court examined this admittedly confusing

record to determine what crime Williams was convicted of. It

concluded that he was in fact convicted of Maine RDW based on the

court's exchange with him at his plea hearing, in which it asked

if he understood that the government would "have to prove

that . . . [he] used a dangerous weapon and committed or attempted

to commit theft [under § 651(1)(B)]" to which he answered yes.

Williams first contends that, even if he was convicted

of Maine RDW, it was impermissible for the court to look to the

plea hearing to determine that fact. Among other reasons, he

contends that it was impermissible because, even assuming that he

was convicted of Maine RDW, "[s]ection 1252(4) is indivisible with

respect to mens rea and the dangerous weapon used"; thus, the

"modified categorical approach" does not apply, and the court

should have simply asked whether all crimes charged with § 1252(4)

are categorically crimes of violence. And, he contends that the

correct answer to that question is no, because a crime charged

with § 1252(4) can include a crime that criminalizes reckless

conduct and, according to him, can be committed with an object

that does not satisfy Johnson's violent force requirement.

Courts may apply the "modified categorical approach"

when a statute is divisible, meaning it "list[s] elements in the - 21 - alternative, . . . thereby defin[ing] multiple crimes," to figure

out "which of the alternative elements listed . . . was integral

to the defendant's conviction." Mathis v. United States,

(2016). Under the modified categorical approach, the

court is permitted to look to a "limited class of [so-called

'Shepard'] documents (for example, the indictment, jury

instructions, or plea agreement and colloquy) to determine what

crime, with what elements, a defendant was convicted of."

; see also United States v. García-Cartagena,

(1st Cir. 2020) (noting that a judgment is a Shepard document).

However, if the statute under which the defendant was convicted

has a single, indivisible set of elements defining a "single

crime," Mathis,

, a court may not apply the

modified categorical approach, and must simply ask whether the

crime defined by the statute is categorically a crime of violence

see Descamps v. United States,

(2013). Williams

thus contends that it was impermissible for the court to look to

his plea hearing because § 1252(4) is indivisible with respect to

the dangerous weapon used and mens rea.

But that contention is not aligned with what happened

here. The district court in this case did not look to the plea

hearing as part of an application of the modified categorical

approach to determine which mens rea or dangerous weapon was

required by the crime of conviction. Rather, it looked to the - 22 - record documents solely to determine whether Williams was

convicted of § 651(1)(B), as he contended, or of §§ 1252(4) and

651(1)(B), as the government contended. Because both parties

agreed that Williams was at least convicted of § 651(1)(B), its

sole focus was on determining whether Williams was also convicted

of the enhancement in § 1252(4). And that was permissible

regardless of whether § 1252(4) is indivisible as to the mens rea

and dangerous weapon elements. See Pereida v. Wilkinson,

(2021) ("Some statutes state only a single

crime, often making it a simple thing for a judge to conclude from

a defendant's criminal records that he was convicted of violating

statute x and thus necessarily convicted of crime x." (emphasis

added)); United States v. Bryant,

(1st Cir.

2009) (establishing the fact of a defendant's conviction under a

statute first, and then applying the modified categorical approach

to that statute).

If § 1252(4) is indivisible as to the mens rea and the

dangerous weapon elements, as Williams contends, then it is true

that the district court could not have further inquired into those

means that Williams used to commit the offense. But the district

court never looked at the Shepard documents to determine which

mens rea was involved or which dangerous weapon was used. Section

1252(4) "does not create a separate offense" nor does it "requir[e]

a separate culpable mental state"; the only thing it does is add - 23 - an element to the offense at issue -- that the "offense [was]

committed with the use of a dangerous weapon." State v. Seymour,

(Me. 1983) (emphasis added). Thus, because

§ 1252(4) does not contain a mens rea requirement to begin with

(the Class B, C, D, or E crime to which it attaches -- here,

§ 651 -- does), the district court could not have looked to the

Shepard documents to determine which mens rea in § 1252(4) applied.

Moreover, in this case, because the parties agreed that Williams

was at the very least convicted of § 651(1)(B), the district court

also did not have to look to the Shepard documents to determine

which subsection of 651 he was convicted of.7

Nor did the court look to the record documents to

determine what type of dangerous weapon was used. Here, again,

Williams appears to contend that the dangerous weapons listed in

Me. Rev. Stat. Ann. tit. 17-A, § 2(9)(A) are "factual means" of

committing a "single element," and thus, the court could not

inquire into which type of weapon he used. But the district court

did not make such an inquiry -- once it determined that Williams

was convicted of §§ 651(1)(B) and 1252(4), it simply asked whether

robbery with the use of a dangerous weapon (not robbery with the

use of a gun, or some other specific weapon) was categorically a

7 We note, however, that it could have, because that statute is a divisible statute. See United States v. Mulkern,

(1st Cir. 2017). - 24 - crime of violence. Williams,

, at *3-5.8

Williams next contends that, in any event, it was

improper for the district court to rely on the transcript of the

8 Williams further contends that § 1252(4) does not "alter the elements of the substantive offense" at all because it is a sentencing enhancement -- thus, we may not consider it, because courts must "consider [only] the elements of the crime of conviction, not the facts of how it was committed." United States v. Taylor,

(1st Cir. 2017); see also Delgado- Sánchez,

(court may not consider factual means, only elements of the crime). But § 1252(4) is an element of the crime with which it is charged. "If statutory alternatives carry different punishments, then under Apprendi, they must be elements" that the jury must agree upon. Mathis,

. Under Apprendi, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey,

(2000). Section 1252(4) states that if the crime at issue "was committed with the use of a dangerous weapon then the sentencing class for such crime is one higher than it would otherwise be." § 1252(4) (emphasis added). Section 651(1)(B) is a "Class B crime," and in the case of a Class B crime, the period of imprisonment cannot exceed "10 years." § 1252(2). On the other hand, the period of imprisonment for a Class A crime "cannot exceed 30 years." Id. Accordingly, the use of a dangerous weapon under § 1252(4) is an "element" in this case -- not an alternative factual means of committing § 651(1)(B) -- because it increases the penalty beyond the prescribed statutory maximum. Caselaw from the Supreme Court of Maine also supports that conclusion. In State v. Kline, a defendant appealed from a conviction for "reckless conduct with a dangerous weapon" following a jury trial.

(Me. 2013) (citations omitted); see also § 1252(4)(2012) (substantively the same as the version applicable in this case). Among other things, the court found that "[c]ontrary to Kline's contentions, the evidence was sufficient for the jury to have rationally found each element of the offense beyond a reasonable doubt" and cited "17-A M.R.S. §§ 211(1), 1252(4) . . . ." Kline,

(emphasis added). Thus, Kline also suggests that the use of a dangerous weapon is an "element" that the jury must agree upon. - 25 - state court plea hearing to determine what he was convicted of

because it was an "Alford-type plea."

The "distinguishing feature of an Alford plea is that

the defendant does not confirm the factual basis underlying his

plea." United States v. King,

(4th Cir. 2012)

(quotations omitted). However, it is still a conviction like any

other, because "a strong factual basis for guilt is an essential

part of an Alford plea."

(quotations omitted). The

Sixth Circuit in United States v. Phillips thus distinguished

"reliance on the factual basis of the plea provided by the

prosecutor," which is impermissible in applying the modified

categorical approach to an Alford-type plea, from "reliance on the

elements of the charge," which is permissible.

,

479 (6th Cir. 2019) (quotations omitted). It noted that "although

[defendant] was permitted to enter an Alford plea and therefore

did not admit the factual basis of his conviction, the state court

[had] explained the elements of his convicted offense in the plea

colloquy by noting what the prosecution would have to prove."

(emphasis in original). On that basis, it determined

that the plea colloquy was "clear" as to which part of a divisible

statute he was convicted of.

.

As in Phillips, the district court here relied on the

state court's statement of the elements the state would have to

prove Williams committed, not on the prosecutor or defense - 26 - counsel's explanation of the factual basis for his plea. A

defendant that pleads guilty pursuant to an Alford-type plea still

admits the elements of the offense. See

. Thus, it was

permissible for the district court to review the state court's

colloquy with Williams concerning the elements to which he was

pleading guilty.

Finally, the district court was correct in determining

that the record showed that Williams was convicted of Maine RDW.

The state sentencing court asked whether Williams understood that

the government would have to prove that he used a dangerous weapon

and also certain other items that precisely tracked the language

of § 651(1)(B), and he said that he did. Neither party contends

that Williams was convicted of armed robbery under § 651(1)(E) -

- that is, of being "armed with a dangerous weapon in the course

of a robbery . . . or know[ing] that [an] accomplice is so armed."

§ 651(1)(E). Thus, because of the reference to a dangerous weapon,

the only other possible conclusion was that Williams was convicted

of Maine RDW in violation of §§ 651(1)(B) and 1252(4), and the

district court was thus correct in reaching that conclusion.

ii. Whether Maine RDW is a "Crime of Violence"

Having concluded that the district court did not err in

finding that Williams was convicted of Maine RDW, we must next

determine whether that crime satisfies §4B1.2's elements clause.

In United States v. Mulkern, we rejected the argument - 27 - that robbery under § 651(1)(C) satisfied ACCA's elements clause.

. We reasoned that Maine's highest court had

recognized that "any physical force" satisfies the "'physical

force' element" in that subsection.

(emphasis in original)

(first quoting Raymond v. State,

(Me. 1983);

then quoting § 651(1)(C)) (emphasis in original). Although

Mulkern did not directly address § 651(1)(B), the government and

Williams agree that that subsection does not qualify under §4B1.2's

elements clause for the same reasons. See also id. at 92-94

(noting that the defendant had equated the force in

§ 651(1)(B)(2) -- which he contended was his crime of conviction

-- with the force in § 651(1)(C) -- which the government contended

was his crime of conviction -- and thus only considering

§ 651(1)(C)).

The question is thus whether the addition of the

dangerous weapon element in Maine RDW overcomes that conclusion.

Although we previously have not decided the issue, with respect to

Maine RDW, the issue is nearly identical to that raised in our

prior consideration of Massachusetts ADW. And under the law of

the circuit doctrine, newly constituted panels are constrained by

prior panel decisions directly and "closely" on point. Hudson,

(quotations omitted). Specifically, Whindleton

determined that "the element of a dangerous weapon" in

Massachusetts ADW "imports the 'violent force' required by - 28 - Johnson" because "the harm threatened by an assault is far more

violent than offensive touching when committed with a weapon that

is designed to produce or used in a way that is capable of producing

serious bodily harm or death."

. That same logic

applies to Maine RDW. Under Whindleton's reasoning, the threatened

"force" referred to in § 651(1)(B) must be "far more violent,"

id., than "any physical force," Raymond,

, if

committed with a dangerous weapon. In addition, we have previously

determined that "criminal threatening with a dangerous weapon" -

- that is, "intentionally or knowingly plac[ing] another person in

fear of imminent bodily injury with the use of a dangerous weapon"

is a crime of violence under §4B1.2's elements clause because of

the addition of the "dangerous weapon" element in § 1252(4). See

United States v. Collins,

(1st Cir. 2016)

(noting that "whatever [a case relied upon by defendant] may reveal

about the proper definition of criminal threatening, it does not

show that criminal threatening with a dangerous weapon is not a

crime of violence" (emphasis added)).9

Williams contends, as he did with respect to

Massachusetts ADW, that § 651(1)(B) only requires the "intent to

9 The defendant in Collins does not appear to have specifically contested whether the dangerous weapon in § 1252(4) is an "element" of a crime. However, as discussed, we find that it is. - 29 - use [some] force," which is not an intent to use or threaten

violent force. And as described above, Williams contends that

Borden requires an intent to use or threaten violent force. But

Williams's arguments overlap completely with those he made with

respect to Massachusetts ADW. Accordingly, he has not shown why

Hudson does not compel us to find that "the use or threat of

physical force" in Maine RDW "[is] intentional," see Hudson,

, if we cannot reconsider Hudson.

More specifically, by contending that § 651(1)(b) only

requires the "intent to use [some] force," he implicitly

acknowledges that Maine RDW requires intent. The statute itself

also compels such a conclusion -- as part of the crime, the actor

must "threaten[] to use force against any person present with the

intent" to, in essence, engage in conduct that aids in the taking

or carrying away of the property. See § 651(1)(B) (emphasis

added). And, in Hudson, we concluded that the threatened battery

variant of Massachusetts ADW's intent requirement -- that "the

defendant intended to place the victim in fear of an imminent

battery" -- "fits squarely" within ACCA's definition of

"threatened use" of physical force, which is similar to Maine RDW's

intent requirement. Hudson,

(quotations omitted).

Thus, because we are bound by Hudson, we must also reject

Williams's arguments that Maine RDW lacks the requisite intent to

qualify as a crime of violence under §4B1.2's elements clause. - 30 - Williams does make one unique contention as to why Maine

RDW is not a crime of violence. He contends that, to commit Maine

RDW, a defendant does not have to "use[] the dangerous weapon to

effectuate the robbery"; for example, he could recklessly drive

away from the robbery and thereby commit Maine RDW, because his

car would qualify as the dangerous weapon. But the caselaw he

cites is not about Maine RDW, but other crimes, and does not

discuss the role that the dangerous weapon element must play in

the offense. Seymour,

(where defendant was

charged with "reckless conduct with the use of a dangerous weapon"

for, in effect, "forcing [the victim] off the road" and "ramming

[the victim's car] in the rear and causing it to skid sideways"

there was no obvious error in failure to instruct jury that

defendant intended to use the car as a dangerous weapon); Me. Rev.

Stat. Ann. tit. 17-A, § 211 (person guilty of reckless conduct

where he or she "recklessly creates a substantial risk of bodily

injury to another person"); United States v. Cunningham,

(D. Me. 2009) (finding that defendant's

actions "constitute[d]" the crime of criminal mischief -- that is,

the "intentional, knowing, or reckless damage to the property of

another[,]" see Me. Rev. Stat. Ann. tit. 17-A, § 806(1)(A) -- with

use of a dangerous weapon, § 1252(4), where he "[u]se[d] [his]

motor vehicle at night as a battering ram to slam into a vehicle

parked in a residential yard" knowing that his wife and son were - 31 - "somewhere in the vicinity" though not "precisely where they

were"). In any event, the plain language of § 1252(4) appears to

require that the defendant use the dangerous weapon to commit (or

effectuate) his crime. See § 1252(4) (requiring the state to prove

that a crime was "committed with the use of a dangerous weapon"

(emphasis added)).10 Nor does Williams make any textual argument

based on the language of § 1252(4) to the contrary. Finally, there

is Maine caselaw indicating that the state must show that the

defendant committed the crime at issue with the use of a dangerous

weapon to prove he violated § 1252(4). Cf. State v. Satow,

, 548 n.2 (Me. 1978) (disagreeing with defendant's

position that indictment failed to inform him that "the State was

invoking . . . [Me. Rev. Stat. Ann. tit. 17-A, § 1252(5)]" -

- which is, as relevant here, identical to § 1252(4) -- because it

should have been plain to him based on its statement that the

firearm was "pointed" at the victim that it alleged that the

10In explaining the elements of §§ 651(1)(B) and 1252(4) to Williams at his plea colloquy, the court stated in part that "[i]n Count, um, 2 which is Robbery, Class B, the State would have to prove that on or about January 14, 2013, in Auburn, that you used a dangerous weapon and committed or attempted to commit theft . . . ." The court's use of "and" could suggest that a defendant merely has to have a weapon on him while committing the offense, but its choice of the word "use" suggests otherwise, and it likely misspoke. In addition, the district court's statement of the elements is not controlling on us -- rather, we "glean the elements from the statute of conviction as interpreted by the state's highest court." United States v. Velázquez,

(1st Cir. 2015). - 32 - firearm was not merely "possessed" but was "used" by defendant).11

Thus, our precedent leads us to conclude that Maine RDW

is a "crime of violence" under §4B1.2's elements clause.

Specifically, Williams's contentions that Maine RDW is not a crime

of violence are identical -- with one exception that is without

merit -- to those he makes with respect to Massachusetts ADW, which

we previously concluded in Hudson is a crime of violence. And, as

we have seen, Borden and Taylor did not represent an intervening

change of law with respect to Hudson.

III. Conclusion

Accordingly, for the foregoing reasons, we affirm Williams's

sentence.

11 We note, too, that in this context, "[t]o show that a particular reading of the statute is realistic," the defendant must "point to his own case or other cases in which the . . . courts in fact did apply the statute in the . . . manner for which he argues." United States v. Hill,

(2d Cir. 2018) (quoting Gonzales v. Duenas-Alvarez,

(2007) (quotations omitted)); accord Lassend,

(noting that the court need not decide whether "indirectly causing physical harm -- for example, deliberately withholding vital medicine" does not involve the use of violent force because the defendant had not "point[ed] . . . to a single New York case in which a conviction under [the statute at issue] ha[d] been obtained based on" that conduct). - 33 -