United States v. Fish, ___ F.3d ___, 2014 WL 715785 (1st Cir. Feb. 26, 2014) (Massachusetts convictions for breaking and entering (daytime or nighttime) with intent to commit a felony, M.G.L. ch. 266, 16, 18, and assault and battery with dangerous weapon, under M.G.L. ch. 265, 15A, did not categorically constitute crimes of violence, under 18 U.S.C. 16(b), because the minimum conduct punishable under this statute did not create a substantial risk that the defendant would intentionally use physical force against person or property, since the minimum conduct included nonviolent entries of rarely-occupied structures through unlocked doors or windows, rejecting the governments argument that the court should look only to the typical case charged under the statute).

NOTE. Possession of burglary tools should never be considered an aggravated felony, regardless of the sentence. To take the most conservative perspective, however, there is some risk that it could be considered an attempted theft offense. An attempted theft offense would become an aggravated felony if the client received a sentence of imprisonment of one year or more, suspended or imposed.